The Issue The issue presented is whether Respondent Wildwood Golf Operations, LLC, committed an unfair employment practice by discriminating against Petitioner when it terminated Petitioner's employment.
Findings Of Fact Respondent Wildwood Golf Operations, LLC, is a multi- faceted business, consisting of a 71-room hotel with meeting facilities, a 5,000-square-feet restaurant with banquet facilities, tennis courts, a swimming pool, a driving range, and a golf course. While Petitioner's nephew was employed by Respondent as a clerk in its pro shop, he introduced Petitioner to Peter Sands, the director of golf, and Paul Earnhart, the golf manager. The four of them played golf together on several occasions, and Petitioner was considered to be a pleasant, cheerful person like his nephew. When Petitioner's nephew was about to leave Respondent's employ, he recommended to Sands that Sands hire Petitioner as his nephew's replacement. Sands and Earnhart were amenable to the idea. In July 2009 Petitioner completed an application for employment form and was subsequently hired to work part-time in the pro shop. He also gave golf lessons and continued to play golf on Respondent's course. On his application for employment, Petitioner left blank the section asking for information on Petitioner's prior employment. He did answer the question asking if he had ever been convicted or pled guilty to any crime, felony or misdemeanor, other than a minor traffic offense. By answering that question in the negative, he failed to disclose his two prior convictions for shoplifting, to which crimes he had pled guilty. Shoplifting is an offense which would have prevented Petitioner from being hired. Membership information, including the types of memberships Respondent offers together with cost information, was kept in a file folder in an open file folder holder behind the counter in the pro shop. It was part of Petitioner's job duties, as it was for Respondent's other employees, to provide that membership information to anyone inquiring. The importance of selling memberships for the economic viability of Respondent's business was stressed to Respondent's employees. On three separate occasions, Earnhart came into the pro shop and asked Petitioner for a copy of the membership information which was kept in the file. On the first occasion, when Petitioner was unable to retrieve it, Earnhart retrieved the information himself and explained to Petitioner that providing membership information was an important part of Petitioner's job duties. On the second occasion, which occurred approximately a week later, Earnhart again came into the pro shop and asked Petitioner for the membership information. When Petitioner was unable to comply with his request, Earnhart again showed Petitioner where the information was kept. He also told Petitioner that that was the second time he was unable to provide membership information to Earnhart and that Petitioner should not let that happen again. Approximately a week later, on September 27, 2009, Earnhart again came into the pro shop and requested a copy of the corporate membership information from Petitioner. When Petitioner was unable to provide it, Earnhart went to the computer in the pro shop and printed a copy from Respondent's website. While Earnhart was at the computer, Petitioner came to him, bent down next to Earnhart's face, probably less than a foot away, and said, essentially, that he was too well-educated to be reprimanded. Earnhart was shocked and angered by Petitioner's belligerent and confrontational manner. Earnhart retorted rudely and left the pro shop. He encountered Peter Sands, who was on his way into the pro shop, and told Sands what had happened, told him that was Petitioner's third and last time, and instructed Sands to find a replacement for Petitioner, train the replacement, and then terminate Petitioner's employment. On October 14, 2009, Sands had a conversation with Petitioner advising Petitioner that Petitioner's employment was going to be terminated. On October 21, 2009, Respondent terminated Petitioner's employment. At that time, Petitioner was still within his probationary period, which, under Respondent's policies, meant he could be terminated without cause. The day after he was fired, Petitioner sent a letter to Respondent advising that he was disabled and requesting accommodations under the Americans with Disabilities Act. The letter did not specify what disability Petitioner was claiming. Until receipt of that letter, Petitioner had never advised Respondent that he was disabled and he had not been perceived to be disabled by any of Respondent's employees who testified in this proceeding. During the term of his employment by Respondent, Petitioner made no request for accommodations due to any disability. While he did request a footstool to put his feet on while he was sitting behind the counter in the pro shop, he did not advise that his request was related to a disability rather than simple comfort. Likewise, when Petitioner requested to not work the normal Sunday 12-hour shift, he did not mention it was related to a disability. He was given a shorter Sunday shift as were other employees who requested one. Although Petitioner used a handicapped flag on occasion on his golf cart when he was playing golf, so do other people who are not handicapped but simply want to enjoy the privilege of driving closer to a green. In 1996 Petitioner was involved in an accident while working as a paramedic. He suffered a broken arm and tendon damage "throughout his body." After he was rehabilitated, he returned to work for another three years before he lost his job. Petitioner exhibited reluctance to disclose the nature of his alleged disability during the final hearing in this cause. He eventually disclosed at the final hearing that he was 100 percent disabled for "physical limitations," post-traumatic stress disorder, and chronic depression, but identified his disability in his deposition as post-traumatic stress disorder and insomnia. No medical evidence was offered to support Petitioner's allegations that he is disabled. He relied, instead, on hearsay documents, such as his motor-vehicle- handicapped-parking placard, his Medicare card, and his social security card. No competent evidence was offered as to whether Petitioner still has the disability he had when those documents were obtained or for which alleged disability each of those documents was issued. Rather, Petitioner admitted during the final hearing that his insomnia is controlled by medication, that it has been over five years since he received any treatment for post- traumatic stress disorder, and that he doesn't remember who diagnosed him with that condition. He testified in deposition and at final hearing that his post-traumatic stress disorder and his insomnia do not affect his ability or prevent him from being employed. More importantly, Petitioner testified at the final hearing that his alleged conditions did not affect his ability to retrieve membership information from the file folder and, further, that he does not believe that he was terminated by Respondent based on his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of committing an unfair employment practice and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 9th day of September, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2010. COPIES FURNISHED: John J. Joubert 7 Farrier Lane Crawfordville, Florida 32327 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William Grubbs, Esquire Quintairos Prieto Wood & Boyer, P.A. 215 South Monroe Street, Suite 510 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Superior Construction Company Southeast, LLC (Superior), wrongfully terminated Petitioner, James Walker, and refused to rehire him based on his disability in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Parties Petitioner was hired as a laborer by Superior in March 2016. During his tenure with Superior, Petitioner also worked as a flagger and a roller machine operator (roller operator). Superior is a construction company specializing in roadway and highway improvement projects. Superior was Petitioner’s employer as defined by the FCRA. § 760.02(7), Fla. Stat. During the relevant time period, Petitioner worked for Superior on a construction assignment known as “15901 Wekiva Project” (Wekiva Project). Oscar Matson, Superior’s superintendent at the relevant time, was Petitioner’s ultimate supervisor and made day-to-day decisions regarding equipment and staffing. Mr. Matson made all employment decisions with regard to Petitioner, including his hiring and job assignments. Jose Gomez, the project manager at the relevant time, oversaw the administrative side of Wekiva Project and supervised the engineering staff. Mr. Matson consulted with Mr. Gomez regarding the construction staff, and Mr. Gomez was familiar with all of the employees working on this project, including Petitioner. The parties stipulated Petitioner suffers from a disability. Relevant Policies Although Superior offered evidence of its Equal Opportunity Policy (EOP), there is no evidence it provides protections for applicants or employees with disabilities. The EOP states in relevant part: Statement of Policy To further the provisions of equal employment opportunity to all persons without regard to their race, color, religion, sex, or national origin, and to promote the full realization of equal opportunity through a positive continuing program[,] it is the policy of Superior Construction Company to assure that applicants are employed and that employees are treated during employment without regard to their race, religion, sex, color or national origin. * * * N. Handicapped Relative to direct federal contracts, we shall not discriminate against any employee or applicant for employment because of a physical or mental handicap in regard to any position of which the employee or applicant for employment is qualified. There was no evidence whether the Wekiva Project was federally funded or part of a federal contract. Although there was no evidence of a written policy, there was testimony that Superior had a reasonable accommodation process that allows an employee who requires an accommodation to request one through his or her supervisor or through a Human Resources hotline. This process was followed by Petitioner. Petitioner’s Accommodations Petitioner began working for Superior as a laborer with the primary duties of shoveling dirt and cleaning roads. The laborer position was physically demanding and required standing, climbing, crawling, and lifting up to 40 pounds. The position also required constant walking and moving within the project site. Petitioner worked ten-hour shifts on weekdays and eight-hour shifts on weekend days. In April 2016, approximately a month after he was hired, Petitioner was hospitalized for a toe injury incurred at work. Although he was injured on the job and knew he was obligated to report the injury to his supervisors, Petitioner did not. He failed to report the incident to Mr. Matson or anyone else because he did not want “a workman’s comp” issue. On or around April 19, 2016, Petitioner brought medical documentation titled “Work/School Status” to Superior indicating that his work duties should be modified until May 10, 2016. The medical documentation indicated Petitioner should be limited to “light duty.” It also indicated Petitioner could perform the following activities: “Limit[ed] standing/walking” and “Light weight activity.” As a result, Mr. Matson initially placed him in a “flagger” position. This position involved directing traffic in one place, and was considered “light duty” because it did not involve heavy lifting or continuous walking. Although the timing is unclear, Mr. Matson later placed Petitioner in the position of roller operator, where he operated a large piece of equipment. As a roller operator, Petitioner was not required to stand, walk or lift. There was no evidence Petitioner complained to Mr. Matson regarding the assignment to either the flagger or roller operator position, nor did he request further accommodation. The undersigned finds Superior accommodated Petitioner’s request for “light duty.” Petitioner had no attendance, disciplinary, or other issues from April 2016 through the summer of 2016 in the flagger or roller operator position. On August 12, 2016, Petitioner was admitted into a medical facility and was out of work. Upon his return on or about August 18, 2016, Petitioner gave Mr. Matson medical documentation titled “Disability Certificate.” That document certified that Petitioner was “unable to return to work” and was “not able to work until further notice.” As a result of the August 18, 2016, meeting, Mr. Matson prepared Petitioner’s termination paperwork. What triggered the termination paperwork on August 18, 2016, is in dispute. Petitioner asserts when he returned to Superior, Mr. Matson told him he was concerned about his health and fired him. Superior counters that Petitioner informed Mr. Matson he had to quit because he was unable to work due to his medical condition, and Superior advised Petitioner to reapply when he was ready. For the reasons below, the undersigned finds Superior’s version of the facts is more consistent with the credible evidence and testimony. First, Superior’s version of events is corroborated by Petitioner’s own sworn statements made in his Charge and Amended Charge of Discrimination, in which he states Superior “advised me to come back to work when I was ready.” Second, Mr. Matson’s testimony that Petitioner told him he was unable to work is consistent with the Disability Certificate provided by Petitioner and with Mr. Matson’s work notes made on August 18, 2016. Those notes indicate Petitioner “said he had to quit because he has austioprosis [sic]. We filled out a termination paper for him.” Although Petitioner challenges the reliability of these notes because he actually had “osteomyelitis,” it is plausible that Mr. Matson mislabeled or misspelled the illness given his unfamiliarity with it and the phonetic similarity between the two terms. Third, Petitioner’s assertion that he was fired is inconsistent with statements he made on subsequent applications when asked the “reason for leaving” Superior. In one application he answers “no work”; in another he lists “medical reasons.” Nowhere does he disclose or state that he was fired or terminated. Finally, based on Petitioner’s demeanor and the inaccuracies and inconsistencies between his testimony and the other evidence, the undersigned finds Petitioner’s testimony less credible than that of Mr. Gomez and Mr. Matson. Petitioner was unable to recall specific dates or details about alleged conversations or his work/medical status. Petitioner admitted he lied to Superior about the injury causing him to go out on leave in April 2016. He blamed discrepancies between his hearing testimony and sworn statements in the documents submitted to the Commission on his attorney; he blamed inconsistencies in the statements made in his disability benefits paperwork on the insurance company; and he explained misleading statements in subsequent job applications as necessary white lies. The undersigned finds Superior’s explanation that it processed Petitioner’s termination after it was clear he could not work and there was no date certain as to when he could return, and its version of facts surrounding Petitioner’s separation more credible. Regardless, however, of whether he quit or was fired, Petitioner was not qualified to work on August 18, 2016. He offered no evidence, nor is there anything in the record, indicating that his inability to work had ever changed, or that the restrictions and limitations set forth in the Disability Certificate were ever lifted. As such, the undersigned finds Petitioner could not perform his job duties and could not work as of August 18, 2016. Petitioner’s Reapplication Petitioner claims he reapplied for a position with Superior numerous times after August 2016. Other than a July 2017 application, it is unclear how often or what other times he reapplied. Petitioner claims Superior did not rehire him because of his disability. As proof, he states Mr. Matson and Mr. Gomez made comments inquiring about his health. The undersigned finds these comments were innocuous and were expressions of concern for his well-being, rather than related to his specific disability. Petitioner’s attempt at reemployment with Superior is also suspect. There was no admissible evidence to prove that Superior was actually hiring in July 2017. In fact, there was evidence Petitioner only reapplied for work at Superior to better his legal position for future litigation; Petitioner admitted he reapplied for a position at Superior “because my attorney said to reapply to see how they would react.” Petitioner also made statements in disability insurance applications that he was unable to work at the time he reapplied for work at Superior. Specifically, as of July 17, 2017, the date of Petitioner’s Social Security Application for Disability Insurance, Petitioner indicated he could not work and had been unable to work since September 1, 2016. Irrespective of Petitioner’s motives, Superior asserts it did not consider his disability when Petitioner reapplied, but rather that it did not rehire Petitioner because it had no vacancies. Mr. Matson credibly testified that in July 2017, the Wekiva Project was coming to an end and he was struggling to keep the staff occupied until the next assignment. Mr. Matson explained, “we were long on help at that time.” Mr. Gomez also met with Petitioner in July 2017 regarding his reapplication. At the time Superior was working on another project, Project 16903. Mr. Gomez told Petitioner that he would be eligible for the next project, Project 17904, but that project was not starting until late 2017 or early 2018. This is consistent with Petitioner’s application dated July 5, 2017, which has a handwritten notation: “Consider Rehire for 16903 per Jose G. till 17904 Ready.” Mr. Gomez was not responsible for Project 17904, nor was there any evidence that the person hiring for Project 17904 was aware of Petitioner’s disability. Superior never rehired Petitioner. The undersigned finds Superior did not consider Petitioner’s disability, but rather, based its decision not to rehire Petitioner on the fact it did not have any vacancies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, James Walker, did not prove that Respondent, Superior Construction Company Southeast, LLC, committed an unlawful employment practice against him; and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 4th day of January, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 4th day of January, 2019.
The Issue The issue is whether Respondent, as a covered employer under the Florida Civil Rights Act, Sections 760.01 through , Florida Statutes (2008),1 committed an unlawful employment practice against Petitioner.
Findings Of Fact The Parties Respondent is a constitutional officer and employer subject to the jurisdiction of the Florida Civil Rights Act. On or about July 2, 2001, Respondent, upon the recommendation of Tom Kay, then director of Respondent's Information Technology ("IT") Department, hired Petitioner as a desktop support analyst in the IT Department. The desktop support analyst position, like all positions with Respondent, is an at-will position. Petitioner was 64 years of age when he was hired by Respondent. During his initial years of employment with Respondent, until about late 2005, Petitioner reported to and was supervised by Mr. Kay. After Mr. Kay resigned in November or December 2005, Petitioner reported to Greg Brock, the IT director. Throughout his employment as an IT desktop support analyst, Petitioner was knowledgeable regarding computer applications and his employer's policies regarding use of computers. The essential functions of the desktop analyst position included adhering to and following the principles of the Clerk's Office, and complying with and supporting the mission of the Clerk's Office and the goals and objectives of the IT Department. The Policies and Guidelines Respondent established detailed Information Security Policy Guidelines regarding the use of network resources. Section 5.6 of the Security Guidelines prohibits employees from using network resources for "obscene or suggestive messages or offensive graphical images." Additionally, Section 5.7 of the Guidelines prohibits employees from deliberately downloading or uploading certain materials, including materials of a "sexually explicit nature" or "material which adversely affects the employee's or user's ability to do his or her job or . . . the [Clerk's] office's ability to carry out its assigned mission." Respondent developed and approved a Personnel Handbook which governs, among other matters, employee use of various types of equipment. Section 1.16 addresses the "Care and Use of Equipment," including computers, Internet access and email, which are the property of the Clerk's Office. The policy prohibits employees from using those computers for personal purposes and, specifically, prohibits the use of such equipment in ways "that may be disruptive, offensive, or harmful to morale." Section 1.16 further provides that Respondent's objective with regard to this policy is "to maintain a workplace free from harassment and sensitive to the diversity of its employees." IT Team Building Exercises While IT director, Mr. Kay instituted sports-based office games for team-building. Mr. Kay believed that these activities would boost morale, promote camaraderie, and facilitate communication among staff in the office. Mr. Kay considered the team-building activities to be an effective tool in leading a group of IT people, who typically are introverted by nature, prone to going to their "corners," and not interacting very much. JeanMarie Walsh, then assistant to Mr. Kay, coordinated some of the team-building activities, including the fantasy football game. While serving in that capacity, Ms. Walsh prepared football pool ballots at lunchtime on Friday for Monday morning bragging rights and temporary use of a team hat. She also occasionally used the office computer for email reminders and did so at the direction of Mr. Kay, believing it was not inconsistent with the Clerk's Office policies. The sports "picks" were done primarily during off-duty times and involved only incidental (five to ten minutes a day) use of staff time or the Clerk's Office equipment. This incidental use of equipment in connection with authorized team-building activities did not constitute unauthorized personal use of Respondent's equipment. Mr. Kay opined that the team building activities and use of staff and equipment in connection with those activities were within his rights as IT director. The Chief Deputy Clerk, Janet Cantees ("Chief Deputy Cantees"), knew that the IT Department employees participated in the sports-based team-building exercises initiated and implemented by Mr. Kay. Furthermore, at no time were these team-building activities proscribed by the employer. Respondent was generally aware of the team-building exercises in the IT Department and cautioned Mr. Kay to make sure no money was involved in the activities. She also advised him that employee participation in the team-building exercises was to be on a purely voluntary basis. In accordance with Respondent's instructions, no money was exchanged in regard to these sports team-building activities, and no IT employee was required to participate in the sports activities. The team-building sports activities in the IT Department concluded prior to July 2007. The use of team-building exercises is not unique to the IT Department, but is used with other employees in the Clerk's Office. For example, Chief Deputy Cantees had developed and used other team-building exercises for managers and staff who worked in different locations in the county. Some IT employees also participated in a "Clerk Shirt Everyday" activity, which was to encourage employees to wear their official "clerk shirts." The person who wore a "clerk shirt" that was a color not worn by anyone else that day was the winner of the activity. The winner was given one or two dollars by each participating employee to buy donuts the next day for the work group. Policy Violation Related to Use of Computers In or about early July 2007, Ms. Walsh, an employee in the IT Department telephoned Petitioner from her office. After he did not answer his phone, Ms. Walsh went to Petitioner's work area where she observed him on the computer in the Miami Hurricane football chat rooms. Ms. Walsh then reported to IT Director Brock that Petitioner was not answering his phone and told him what she had observed. On or about July 5, 2007, after Ms. Walsh reported seeing Petitioner in the Miami Hurricane chat rooms, Mr. Brock had Petitioner come to his office. Mr. Brock then told Petitioner that he should not be visiting what Brock believed to be the Miami Hurricanes football web chat rooms on Respondent's computer. During this meeting, Petitioner denied that he had visited such chat room as had been reported. On or about July 25, 2007, while in the area in which Petitioner worked, Ms. Walsh observed Petitioner at his computer. At that time, Ms. Walsh saw an inappropriate image on Petitioner's 24-inch computer screen. The inappropriate image was in clear view of Ms. Walsh and any other employee present in the adjacent working area. When Ms. Walsh saw the inappropriate image, she was concerned that a female vendor working nearby might be exposed to the explicit image. Ms. Walsh was embarrassed and shocked by the image she saw on Petitioner's computer screen and, thus, said nothing to Petitioner. Instead, Ms. Walsh immediately reported what she had witnessed to Mr. Brock. When Ms. Walsh initially told Mr. Brock about the image she had witnessed on Petitioner's computer screen, she described it as "offensive" to "a woman." During their brief conversation about the image on Petitioner's screen, Ms. Walsh was uncomfortable and embarrassed talking about the image. As a result, neither Mr. Brock, nor Ms. Walsh discussed the image in any detail other than confirming it was of a sexual nature. On July 25, 2007, after Ms. Walsh complained about the inappropriate image on Petitioner's computer screen, Mr. Brock conducted an inspection of Petitioner's computer. As a result of that inspection, Mr. Brock found on the hard drive two offensive photos, referenced as "Jugsy.jpg" and "cheappussy.jpg." The "Jugsy.jpg" photo found in Petitioner's computer depicts a young woman, mouth open, clad in a bra or bikini top, clutching her breasts, most of which were exposed, and pushing them together. The "cheappussy.jpg" photo found in Petitioner's computer depicts a man holding or dangling a hairless cat, which appears to be dead, in the air by its head. The offensive photos were found among other photos depicting Petitioner and his friends, and/or acquaintances of his, engaged in social or sports activities, including the University of Miami Hurricane events. The offensive photos found by Mr. Brock were located in a place on Petitioner's computer associated with his user name/login and were copied to the computer into Petitioner's profile or personal directory. Furthermore, based on Mr. Brock's inspection, there was no indication that the offensive pictures had been tampered with or modified by anyone else. At all times relevant hereto, there were ten or eleven employees in the IT Department, all of whom had administrative passwords that allowed them to access any of the Clerk's Office computers. The IT employees needed this access in order to perform their authorized job responsibilities. Because the IT employees had access to all computers, it is possible that any IT employee could have accessed Petitioner's computer. However, there is no evidence that this ever occurred. At all times relevant hereto, Mr. Brock had the experience and expertise to run a report of computer activity and to conduct a forensic analysis of Petitioner's computer to determine the history of the images. However, based on the findings of Mr. Brock's initial investigation of Petitioner's computer, he determined that such analysis or report was not necessary. On July 26, 2007, Mr. Brock showed Ms. Walsh the images he found saved in Petitioner's computer. At that time, Ms. Walsh identified the picture labeled "Jugsy.jpg" as the offensive image she had seen on Petitioner's computer. At this proceeding, Ms. Walsh testified that the image she saw on Petitioner's computer screen in July 2007 was a topless female in partially unzipped jean shorts. Undoubtedly, there is a difference in the image Ms. Walsh described in her testimony, which was two years after the incident, and the "Jugsy.jpg" photo she identified the day after she saw the image. This difference or discrepancy may be attributed to several factors including the following: (1) the lapse of time, two years, between Ms. Walsh's seeing the image and testifying at this proceeding; (2) the brief time that Ms. Walsh actually saw the image on Petitioner's screen; and/or (3) the brief time she looked at the "Jugsy.jpg" photo when it was shown to her by Mr. Brock. Notwithstanding the foregoing difference in Ms. Walsh's description of the image she saw on Petitioner's computer screen and the photo she identified as that image, Ms. Walsh's testimony that she saw an offensive image of a woman on Petitioner's computer screen is found to be credible. Significantly, Ms. Walsh's complaint led to an investigation, which found that there were offensive photos stored in Petitioner's computer (the one provided to him by the Clerk's Office). Decision to Terminate Petitioner's Employment In personnel matters regarding employment termination, the process begins with the unit manager or director discussing and reviewing the situation with Edith Peacher, manager of Human Resources ("HR"). After the matter is reviewed, the director or manager typically makes a recommendation in consultation with HR Manager Peacher. That recommendation is then conveyed to Chief Deputy Cantees, a key decision maker, who reviews the matter and then communicates her decision/recommendation to Respondent. Ultimately, Respondent has "veto authority" over the recommendation and/or decision of the chief deputy clerk. Consistent with Respondent's personnel practices, after Ms. Walsh identified the picture that she believed she saw on Petitioner's computer screen, Mr. Brock conferred with the HR manager. During the meeting with HR Manager Peacher, Mr. Brock advised her of Ms. Walsh's complaint, his investigation, and the photos he had retrieved from Petitioner's computer. Mr. Brock also told HR Manager Peacher that a few weeks before, he had spoken to Petitioner about using his computer to go to chat rooms. HR Manager Peacher, with input from Mr. Brock, drafted a Termination Notice dated July 26, 2007, for violations of the Clerk's Office's policies, procedures and professional conduct and standards. HR Manager Peacher then recommended to Chief Deputy Cantees that Petitioner's employment be involuntarily dismissed from the Clerk's employ. The July 26, 2007, Notice of Termination cited the prior disciplinary action; the July 5, 2007 verbal counseling; and references the two photos/images described in paragraphs 24 and 25 as deliberate and inappropriate use by an IT employee of the Clerk's Office computer equipment, justifying termination of employment. Section 4.02 of the Clerk's Personnel Handbook provides that "[e]mployment with the Clerk . . . is on at will basis," but states that "the Clerk may utilize progressive discipline in an effort to work with the employee." Under this provision, the option of using progressive discipline is discretionary, not mandatory. In the instant case, HR Manager Peacher believed that the display of offensive images on Petitioner's computer screen was an "egregious" situation and one which warranted immediate termination. On July 26, 2007, Mr. Brock and HR Manager Peacher met with Petitioner and reviewed the Notice of Termination and the pending recommendation for dismissal with Petitioner. When confronted with the allegation regarding the offensive images found in his computer, Petitioner stated "matter of factly" that someone "may" have placed the photos on his computer. However, he offered no reason for his implication that someone else "may" have tampered with his computer. Nonetheless, HR Manager Peacher told Petitioner that Respondent could investigate and find out if someone else had placed the images in his computer, but Petitioner did not request further investigation. At the July 26, 2007, meeting, Petitioner signed the Notice of Termination and indicated that he "read the Notice but did not agree with it in any way, shape or form." HR Manager Peacher conveyed to Chief Deputy Cantees the substance of the meeting with Petitioner and her belief that no errors of fact had occurred. After listening to HR Manager Peacher's presentation of the facts, Chief Deputy Cantees asked HR Manager Peacher and Mr. Brock several follow-up questions about the incident (i.e., the validity of the complaint, if and how Petitioner's computer had been checked, etc.). Chief Deputy Cantees was satisfied with the information HR Manager Peacher provided to her, as well as the responses to her questions that were provided by HR Manager Peacher and Mr. Brock. Both HR Manager Peacher and the Chief Deputy Cantees relied on Mr. Brock's experience and expertise in computer forensics in determining the origin of the offensive images found on Petitioner's computer. Based on her discussions with HR Manager Peacher and Mr. Brock and her review of the record, Chief Deputy Cantees concurred with the recommendation of termination and the Clerk gave final approval. Petitioner was 71 years old when he was terminated from his employment with Respondent. The person hired to replace Petitioner was an individual estimated to be in the mid-40 to mid-50 range. Prior to the incident involving Petitioner, neither Respondent, nor the HR manager had received reports of, or knew of incidents of, employees having inappropriate (sexual) images on their computers. Therefore, no employees in the Clerk's Office have ever been disciplined for that offense. Medical Condition of Petitioner In 2002, Petitioner was diagnosed with a melanoma that required office surgery and other pre-cancerous lesions that also required treatment. The surgery and all other treatments were performed in the doctor's office and required no hospitalization. Between 2002, when he was first diagnosed with a melanoma and through July 2007, Petitioner has continued to be treated for skin cancer. During this five-year period, Petitioner's condition and his treatments for that condition have not significantly affected or, otherwise, limited Petitioner's ability to work or to engage in most activities. During the five-year period since he was diagnosed with skin cancer, Petitioner had regular check-ups, some of which may have resulted in his doctor's performing certain in-office medical procedures. Other than those in-office procedures, Petitioner's treatment for his condition consists of applying various salves, creams, and/or lotions to his skin. Finally, as a result of his medical condition, Petitioner had been directed to stay out of the sun. Because Petitioner must now stay out of the sun, he is no longer able to participate in daytime activities that he previously enjoyed doing and/or had been able to do (i.e., going to the beach and to his grandson's soccer and softball games). During his employment with the Clerk's IT Department, Petitioner never requested leave under the Family Medical Leave Act. Moreover, there is no indication that his medical condition affected his attendance at work. In fact, between January and July 2007, Petitioner saw his physician only about six times. Petitioner never notified Respondent, Mr. Brock, or Chief Deputy Cantees that he had skin cancer. Furthermore, none of them knew or suspected that Petitioner had skin cancer or any other medical condition. Finally, Petitioner's co-workers were unaware of his medical condition. While employed in the IT Department, Petitioner had several conversations with HR Manager Peacher. Petitioner recalled that during one of those conversations, HR Manager Peacher referred him to a dermatologist or assisted him with a medical referral. At this proceeding, HR Manager Peacher did not recall giving Petitioner the name of a dermatologist, but acknowledged that she may have done so. HR Manager Peacher explained that she speaks to numerous employees throughout the workday about various personnel-related matters and provides them with such assistance when requested to do so. Despite having several discussions with Petitioner during his employment with the Clerk's Office, HR Manager Peacher was unaware of his medical condition. Alleged Disability Discrimination Respondent conducted general meetings with employees every other month. During those meetings, Respondent covers a variety of topics with employees, all of which are on a printed agenda and later sent to employees by e-mail. The Agenda for the June 22, 2007, employee meeting included a three-page overview of the employee compensation package offered to Respondent's employees that included the following introductory statement: "Part of offering a competitive benefits plan is being proactive in maintaining a healthy lifestyle. Each of us must take the responsibility to live healthy lives, and, in return, our insurance costs will be minimized." During that meeting, Respondent read that language verbatim. In reading the above-quoted language, Respondent's intent was to encourage employees to address "preventable issues," such as smoking, overeating, and not exercising. However, in the charging document, Petitioner alleges that the above-quoted language meant Respondent wanted to hire only "healthy employees." Petitioner's interpretation distorts and misconstrues the above-quoted comments made by Respondent. Further, there is no evidence to support Petitioner's allegation that Respondent wanted to hire only healthy employees. Also, those comments do not, in any way, relate or refer to employees with disabilities and cannot reasonably be construed to do so. Claim of Age Discrimination Petitioner received such inquiries periodically and complained about the practice from time to time. For example, in a June 8, 2007, email to HR Manager Peacher, Petitioner complained about a phone call from ACS Recovery Service ("ACS"), a third-party health benefits coordinator. Petitioner perceived the ACS inquiries regarding Medicare eligibility as age discrimination. Sarasota County Government Benefits Manager Steve Marcinko testified credibly that ACS provides coordination of benefits services for Aetna, Sarasota County Government's third-party administrator. To carry out its responsibility, ACS is authorized to contact the employees to determine whether alternate insurance coverage, including Medicare, may be available to cover a claim that is otherwise the responsibility of the Sarasota County Government. Among those contacted by ACS are group health plan participants who are "post-65 and Medicare-eligible." The purpose of these contacts is to verify whether the participants are "active" or "retired" employees. Such verification assists in determining whether the group health plan or Medicare has primary or secondary responsibility for the benefits of those individuals. The inquiries by ACS are not age-based, except as they relate to an individual's Medicare eligibility, and are not conducted at the direction of the Clerk. When conducting these inquiries, ACS does not copy the individual's employer or former employer about such inquiries.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Michael L. Coyle's, Petition for Relief. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2010.
The Issue The issue is whether Petitioner has been subjected to an unlawful employment practice, namely, discrimination on the basis of her age, gender, religion, or disability.
Findings Of Fact Petitioner, Esther Kay Gibbs, is a resident of Ocala, Florida, whose date of birth is January 31, 1956. Petitioner has many years of experience in a variety of clerical positions. Petitioner applied for the position of Court Clerk I with the Marion County Clerk of the Court’s Office on September 20, 1999. Petitioner’s application for employment stated that she has the ability to type at the rate of 35-40 words per minute. The Marion County Clerk’s Office employs approximately 200 persons in approximately 14 different departments. Petitioner initially interviewed for the position of Court Clerk I with Mr. Jack Seese, Chief Deputy Clerk for Administrative Services; and Ms. Maribeth Hudson, Chief Deputy Clerk for Court Services. During the interviews, Petitioner was explained the varied duties of a Court Clerk I, which included typing at the rate of 45 words per minute. At the time of the interview, Petitioner was aware that typing was an essential job function. The interview notes of Mr. Seese and Ms. Hudson showed Petitioner to be an “above average” candidate for the position. Mr. Ellspermann interviewed Petitioner and hired her effective October 14, 1999. Mr. Ellspermann reviewed Petitioner’s employment application and was aware that she listed her typing speed at 35-40 words per minute. Petitioner was never told she would be placed in a particular department or division of the Clerk’s Office. All of the Clerk I positions required typing. Petitioner was hired as a Court Clerk I in the traffic division and remained in that position until her resignation on August 23, 2001. Petitioner suffers from scleroderma, the symptoms of which include pain in her fingers, extreme sensitivity to cold temperatures, difficulty swallowing, loss of sleep, and the inability to garden or use her hands for any fine motor work. The Social Security Administration issued Petitioner a determination of disability in 1989. Petitioner concealed her medical condition from Respondent. Petitioner told Respondent’s officials during her interviews that she was able to type. Respondent had no way of knowing that Petitioner had a disability or a problem with typing at the time of the interviews. Respondent hired Petitioner with the knowledge that she was able to type only 35-40 words per minute. Throughout her employment with Respondent, Petitioner’s supervisors were Ms. Kudary or Ms. Rodgers. As her supervisors, Ms. Kudary and Ms. Rodgers counseled Petitioner on numerous occasions about mis-keyed citations and other performance issues. Petitioner presented no evidence concerning her claim of gender discrimination. Petitioner presented no evidence concerning her claim of age discrimination. Petitioner claimed that a non-supervisory co-worker made a derogatory remark about her religious beliefs. Petitioner presented no evidence concerning her claim of religious discrimination. Petitioner made an effort to be a cooperative employee and to fit into office culture by volunteering to work comp time and overtime. Petitioner published recipes for and cooked meats at the request of her fellow co-workers and supervisors, even though she is a vegan. Petitioner wrote a complimentary e-mail to her supervisor, Karen Rodgers. On November 9, 2000, Mr. Ellspermann approved a two percent pay increase for Petitioner. In his memo to Petitioner, Mr. Ellspermann noted that “Your evaluation reflects your interest and commitment in providing the citizens of Marion County with an effective Clerk’s Office. I thank you for your hard work and continued dedication. Congratulations on a job well done." Also, on November 9, 2000, Mr. Ellspermann directed Respondent’s payroll department to provide eight hours of incentive time to Petitioner’s annual leave. Mr. Ellspermann wrote to Petitioner, “I want to take this opportunity to recognize and thank you for the special effort you have taken not to use sick time throughout the year.” The letter noted that he took this action because Petitioner was “blessed with good health and displayed a commitment of service to Marion County and the Clerk’s Office.” All employees in the Marion County Clerk’s Office are required to attend annual harassment/discrimination training seminars. Petitioner attended a harassment/discrimination training seminar on the morning of August 22, 2001. Petitioner and the other attendees at the seminar were encouraged to report incidents of harassment to their supervisors. During a break in the training, Petitioner approached Ms. Hudson and told her she believed that her supervisor, Ms. Rodgers, was harassing her. Ms. Hudson agreed to arrange a meeting with the Deputy Clerk, Mr. Seese. At a meeting with Mr. Seese and Ms. Hudson, Petitioner stated that Ms. Rodgers was mean and belittling to her and everyone else in the traffic and misdemeanor divisions. Petitioner stated that the alleged harassment by Ms. Rodgers had nothing to do with her race, color, religion, national origin, age, or marital status. Mr. Seese and Ms. Hudson concluded that Ms. Rodgers' alleged acts toward Petitioner had nothing to do with harassment within the interpretation of the law and the Clerk’s Office Anti-Harassment Policy. Mr. Seese concluded his investigation at this point. Petitioner made multiple data entry errors as a Court Clerk I. Petitioner had previously had a dispute with Ms. Rodgers over errors she had made in entering citations into the system. On the afternoon of August 22, 2001, Mr. Ellspermann summoned Petitioner to his office to meet with Ms. Hudson and him concerning Petitioner’s data entry errors. At the August 22 meeting, Mr. Ellspermann discussed Petitioner’s errors in keying-in citations with her. In response to Mr. Ellspermann’s concerns regarding Petitioner’s performance, Petitioner threw her hands in the air, and for the first time since she had become employed with the Clerk’s Office, stated that she could not do her job because she could not type. Mr. Ellspermann and Ms. Hudson were surprised by Petitioner’s revelation concerning her inability to type. Mr. Ellspermann informed Petitioner that he would see if any positions were available at the Clerk’s Office that did not require typing. Mr. Ellspermann made a good faith effort to find Petitioner a position that did not require typing. No positions existed at the Clerk’s Office for Petitioner that did not require typing. Petitioner told Mr. Ellspermann that she could neither type nor remain in a position that required typing. Earlier in 2001, Petitioner had submitted a form to the Department of Health in which she stated “I can’t work in the cold; I can’t type anymore.” Petitioner did not ask for an accommodation from Respondent other than asking for a position that required no typing. Mr. Ellspermann and Ms. Hudson met again with Petitioner on August 23, 2001, at which time Mr. Ellspermann reported that Respondent had no positions available into which she could transfer that required no typing. Petitioner was informed that she could either resign or be terminated since she was unable to work at a position that required typing, and no positions were available that did not require typing as an essential part of the job. Petitioner resigned from her employment with Respondent due to her “health problems.” Since her resignation from the Marion County Clerk’s Office, Petitioner has not been able to secure employment at a comparable salary to what she previously earned as a Court Clerk I.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner’s charge of discrimination. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004. COPIES FURNISHED: Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Esther Kay Gibbs 3415 Northeast 17th Terrace Ocala, Florida 34479 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent discriminate against Petitioner because of his handicap and in retaliation for filing an earlier discrimination complaint with the Florida Commission on Human Relations, as alleged in Petitioner's Petition For Relief, in violation of Sections 760.01 - 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner checked the boxes for both Handicap and Retaliation in the section titled "Cause of Discrimination Based On" of the Charge of Discrimination filed by Petitioner on May 14, 1994. In the section titled "Date Most Recent or Continuing Discrimination Took Place" of the Charge of Discrimination Petitioner indicated December 22, 1992. In the section titled "The Particulars Are" of the Charge of Discrimination Petitioner indicated: PERSONAL HARM: On a continuing basis I have not been referred for work by my union, with the last occurrence on December 22, 1992. RESPONDENT'S REASON FOR ADVERSE ACTION: Mr. Mike Brewer, Union Business Agent, said that I was not wanted in the department in which I had previously worked. DISCRIMINATION STATEMENT: I believe I have been discriminated against because of retaliation for filing (FCHR No. 90-8052) for the following reasons: The last time I contacted Mr. Brewer he hung up on me. continuing Mr. Brewer has referred other union members for work on a basis. A NOTICE OF DETERMINATION: NO CAUSE was issued by the Commission on March 11, 1996. In Section 3 of the Petition For Relief filed with the Commission on April 15, 1996, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1993, as Amended, as follows: Conspiring with company to isolate the HANDICAPPED Petitioner in a classification essentially made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990 signing of the A.D.A. (singling him out for "layoff") F.S. 760.10(4b). Filing a grievance to deter the Petitioner from filing any HANDICAP Discrimination complaints, and refusing to process it. Referring others for employment on a continuing basis, (F.S. 760.104(b). Refusing representation. (Foreman/union steward?) At all times material to this proceeding, Petitioner Dennis M. Presson was a member of the bargaining unit of the Craft Maintenance Council, Carpenters Local Union No. 1820. Respondent Craft Maintenance Council, Carpenters Local Union No. 1820 Statutes. Commission and the courts. as a Property Craftworker Assistant, and assigned Petitioner to the Furnishings 10. During August, 1990, the work in Furnishings declined and, in lieu of craftworker assistants, including Petitioner, were temporarily assigned on through the first week of October 1990. October 11, 1990, was laid off due to lack of work in Furnishings. Petitioner 12. On November 2, 1990, the remaining six property craftworker assistants higher in seniority than Petitioner. transferred back to Furnishings so that he could be laid off is without merit. department until their function could no longer be justified in lieu of laying The lay-offs on October 11 and November 2, 1990, were caused by lack get back at Petitioner because of his handicap or in retaliation for filing an On October 11, 1990, when Petitioner was laid off, Disney offered as custodians. Although other property craftworker assistants accepted work as On October 12, 1990, Michael Brewer, Shop Steward filed an Employee of seniority - another worker with lower seniority had been retained. Respondent settled with Disney for $2,500 rather than proceed to final and Petitioner received payment. grievance or delayed or refused to process the grievance so as to deter During the grievance process Disney again offered Petitioner a job as From the time Petitioner was laid off on October 11, 1990, until December, 1992, Respondent referred Petitioner to six or seven jobs. These jobs covered every field where the work required unskilled or slightly skilled employees. Petitioner declined each and every offer, stating that he was an artist and wanted a job as an artist. Prior to Petitioner filing this complaint with the Commission, Respondent's last contact with Petitioner was around December 1992, when Petitioner informed Respondent that he had a job as an artist with Dollywood in Tennessee and was moving. On August 27, 1992, Petitioner filed a charge against Respondent with the National Labor Relations Board alleging that Respondent "has restrained or coerced and is restraining and coercing Dennis M. Presson, a crafts worker assistant, in the exercise of rights guaranteed in Section 7 of the Act by refusing to advise him of the status of his grievance on his layoff, for arbitrary, invidious and discriminatory reasons and therefore has breached its of fair representation". The National Labor Relations Board dismissed the charge for lack of merit. Respondent has referred Petitioner to jobs where Petitioner's skill matched the classification (unskilled or slightly skilled) of the job being offered. There was no evidence that Respondent had refused or failed to refer Petitioner to jobs that matched his skill because of Petitioner's handicap or in retaliation for filing an earlier discrimination complaint against Disney with the Commission. Petitioner presented no evidence of any job that matched his skill that was available through Respondent which Respondent failed or refused to refer Petitioner for any reason. Based on Petitioner's allegation, Respondent's last refusal to refer Petitioner to an available job occurred in December 1992. There was no evidence that Respondent: (a) conspired with Disney to isolate Petitioner in a classification made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990, signing of the A.D.A. (Americans with Disabilities Act); (b) conspired with Disney to single Petitioner our for lay off; or (c) refuse to represent Petitioner while a member of the union. Petitioner has neither been employed nor has he attempted to obtain any gainful employment since he was laid off by Disney on October 11, 1990. During this period Petitioner has worked on this case and looked after his mother. Petitioner survives on food stamps and other governmental subsidies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Petition for Relief filed by Dennis M. Presson against Craft Maintenance Council, Carpenters Local Union No. 1820 be dismissed. RECOMMENDED this 27th day of November, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: Sharon Moultry, Clerk Building F, Suite 240 325 John Knox Road Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 Tallahassee, Florida 32303-4149 2816 4th Street Orlando, Florida 32820 Thomas Egan, P.A. 56 East Pine Street
The Issue The issue in this case is whether, on the basis of Petitioner's age, Respondent (a staffing agency) unlawfully discriminated against Petitioner by having him terminated from his position with Respondent's client, in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent inSync Staffing, Inc. ("inSync"), is a company that recruits for, and supplies employees to, its clients, including, as relevant here, NBTY, Inc. ("NBTY"). inSync is an "employment agency" as that term is used in the Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13, infra. inSync does not meet face-to-face with most of the candidates it places with clients. On or around August 19, 2015, a recruiter at inSync forwarded the résumé of Petitioner Adalberto Lopez ("Lopez"), then 75 years old, to NBTY in hopes that NBTY might hire Lopez to fill the position of "QA Floor Inspector – Shift 1," a job that paid $13.50 per hour. About a week later, NBTY interviewed Lopez, and, on September 2, 2015, inSync informed Lopez that NBTY was offering him the job. Lopez accepted the offer. NBTY, not inSync, made the decision to hire Lopez. At all times, inSync acted essentially as a go-between, introducing Lopez to NBTY and helping him apply for the job, informing Lopez of NBTY's training and drug test requirements for new employees, and providing him with documents that NBTY wanted completed and returned in the ordinary course of new-hire onboarding. One of the documents that Lopez was required to sign and submit was the Employment Eligibility Verification (Form I-9), which is used by the U.S. Department of Homeland Security, administrator of the federal E-Verify program, to determine whether an employee is authorized to work in the United States. The E-Verify program provided NBTY with a result of Tentative Nonconfirmation ("TNC"), meaning that there was, at a minimum, some discrepancy between the information provided in Lopez's Form I-9 and that available in other public records. A TNC does not necessarily disqualify an employee from continuing to work, but it does need to be resolved to avoid the possibility of termination. In this instance, there is no persuasive evidence that the TNC led NBTY to take any adverse action against Lopez. There is, moreover, no evidence that inSync took any adverse action against Lopez as a result of the TNC. Lopez's first day of work at NBTY was September 14, 2015. The next day, NBTY terminated Lopez's employment. Nevertheless, Lopez showed up for work on September 16 and was told, again, that he no longer had a job. There is no persuasive evidence that inSync played any role in NBTY's decision to fire Lopez. inSync did, however, communicate this decision to Lopez, telling him that he had "been terminated due to not catching on fast enough." This was the reason for the termination given to inSync by NBTY. There is no persuasive evidence that this was not, in fact, NBTY's reason for firing Lopez. There is no persuasive evidence that NBTY eliminated Lopez's job, but there is, likewise, no evidence that NBTY filled the vacant position after Lopez's termination, nor (it obviously follows) any proof regarding the age of Lopez's successor (assuming NBTY hired someone to replace Lopez). There is no evidence concerning the candidates, if any, that inSync referred to NBTY after Lopez had been fired. Ultimate Factual Determinations There is no persuasive evidence that any of inSync's decisions concerning, or actions affecting, Lopez, directly or indirectly, were motivated in any way by age-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age discrimination could be made. Ultimately, therefore, it is determined that inSync did not discriminate unlawfully against Lopez on the basis of his age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding inSync not liable for age discrimination. DONE AND ENTERED this 26th day of October, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of October, 2017.
The Issue The issues in this case are: (1) Whether Petitioner filed her charge of discrimination with the Florida Commission on Human Relations within 365 days after the alleged discriminatory act; and (2) Whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of her national origin, gender, or pregnancy.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Olivera is a Cuban-American female. The City hired her, effective March 8, 1993, to work as a secretary in the City Manager’s office. After one week, Olivera was promoted to the position of Office Manager, a more demanding job that entailed much greater responsibilities. The evidence regarding Olivera’s performance as Office Manager is in conflict. Her supervisors believed that Olivera was a marginal employee who failed to discharge her duties satisfactorily. The City has placed in evidence a number of contemporaneous memorandums and other documents that memorialize one or another of Olivera’s perceived performance deficiencies. In contrast, Olivera believed she was performing well, and that her supervisors’ complaints about her were, for the most part, false, exaggerated, or unfair — and worse, a pretext for unlawful discrimination. (Olivera admitted that she had had problems with tardiness during her first year of employment, but all agreed that Olivera had corrected this particular deficiency.) In short, Olivera perceived that she had been singled out for disproportionately harsh treatment and had been made the scapegoat when others failed to do their jobs. More ominously, Olivera accused the City Manager, R.J. Intindola, of constantly having made racist comments about Blacks and Cubans. She claimed that Mr. Intindola uttered racial slurs with such frequency that the workplace became hostile. Further, Olivera asserted that her complaints about Mr. Intindola’s behavior fell on deaf ears. As with the issues pertaining to Olivera’s job performance, the evidence regarding Mr. Intindola’s conduct is in conflict. Mr. Intindola himself denied having uttered the slurs that Olivera put on his lips, yet he admitted that “one time,” in Olivera’s presence, he had referred to another employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola claimed that everyone present knew that he was kidding and laughed at the repartee between him and Ms. Dominguez. No one who testified at hearing corroborated Olivera’s account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who has been employed with the City since May 1974, disclaimed having witnessed any discriminatory behavior in the workplace there, despite having been the subject of the one possibly derogatory comment that Mr. Intindola indisputably made. On or around April 24, 1995, Olivera was asked to resign her employment with the City to avoid being fired, which would be the consequence of her refusal. Faced with this choice, Olivera submitted a letter of resignation dated April 24, 1995. Thereafter, she received severance pay equal to two-months’ salary. Some time later, most likely during the first few weeks of March 1996, Olivera filed both a Charge Questionnaire and an Affidavit (collectively, the "Federal Forms") with the United States Equal Employment Opportunity Commission ("EEOC"). In the Federal Forms, Olivera alleged that the City had discriminated against her, primarily on the basis of her national origin. The EEOC notified Olivera by letter dated March 22, 1996, that, because her charge had not been timely filed under Title VII of the Civil Rights Act of 1964, the commission had forwarded the Federal Forms to the FCHR. On May 6, 1996, according to a date stamp on the face of the document, the FCHR received a Charge of Discrimination that appears to have been signed by Olivera on April 14, 1996. In this Charge of Discrimination, Olivera again alleged that the City had discriminated against her on the basis of national origin, in violation of her rights under the Florida Human Rights Act. Ultimate Factual Determinations The evidence in this record is not sufficient for the trier to ascertain whether, as a matter of objective historical fact, Olivera adequately performed on the job or not. Suffice it say that a preponderance of evidence fails to establish anything except that Olivera, on the one hand, and her supervisors, on the other, sincerely believed the opinions they expressed on this subject. In other words, Olivera honestly believes that she performed competently and was discriminated against. Her supervisors at the City, in turn, honestly believe that Olivera did not measure up to the Office Manager’s position and needed to be let go for that legitimate reason and no others. The upshot of this inconclusiveness is that Olivera has failed to demonstrate, by a preponderance of evidence, that the City violated her civil rights. Olivera’s conviction that she was the victim of unlawful discrimination, no matter how sincerely and firmly held, is not proof of the fact, at least not without more than the evidence in this record establishes. By the same token, the evidence does not exactly exonerate the City, in the sense of proving that its hands were completely clean or that it acted honorably in respect of Olivera. Rather, more likely than not, Mr. Intindola did on occasion make offhand comments about Cubans at which some persons could take offense. A preponderance of evidence fails to show, however, that he uttered these remarks with a discriminatory intent; that Olivera (or anyone else) suffered any material harm or humiliation as a result of hearing them; or that he did so with such frequency or in such fashion that his conduct could be called extreme. In sum, while it is fair to infer, and the trier so finds, that Mr. Intindola was not always as sensitive to the feelings of others as, in hindsight, he probably should have been, there is nevertheless insufficient evidence to support a finding that he acted willfully or that Mr. Intindola’s occasionally insensitive behavior was so consistently and frequently repeated as to become a condition of Olivera’s employment with the City. Likewise, the greater weight of evidence fails to establish that the environment in which Olivera worked was a hostile or abusive one. On this record the trier cannot say that, more likely than not, the workplace was permeated with discriminatory intimidation, insult, and ridicule. Further, the evidence does not establish that Olivera was treated differently than similarly situated employees who were neither Cuban- American, female, nor pregnant. In the final analysis, then, considering the totality of the circumstances, the evidence presented at hearing demonstrates no more than that the City terminated the employment of an at-will employee for performance-related reasons unrelated to her national origin, gender, or medical condition (pregnancy).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Olivera's Petition for Relief. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 12th day of June, 2001.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2010.
The Issue Whether, Respondent, the Florida Department of Transportation (“Respondent” or “Department”), engaged in unlawful employment practices as alleged by Petitioner, Dajin Liu (“Petitioner”), in violation of the Florida Civil Rights Act (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made. Respondent Department of Transportation The Department is a state agency in the State Personnel System, within the executive branch of the State of Florida. §§ 20.04, 20.23, 110.107(30), and 216.011(1)(qq), Fla. Stat., and Fla. Admin. Code R. 60L- 29.002(6). Pursuant to section 20.23, Florida Statutes, the Department is charged with overseeing the construction and maintenance of transportation facilities, including roadways. Florida’s Turnpike Enterprises has additional authority under section 338.2216, Florida Statutes, to plan, maintain, and manage the Florida Turnpike system. Respondent adheres to rules established by the Department of Management Services (“DMS”), including Florida Administrative Code Rule 60L-33.003(2), which defines “Probationary Status” of employees in the Career Service System. The rule provides that while in probationary status the employee serves at the pleasure of the agency head and has no notice or appeal rights pursuant to section 110.227 and chapter 120, Florida Statutes. Respondent has written policies and procedures governing the conduct of employees. New employees are required to sign and acknowledge receipt of these written policies and procedures at the time of employment. Among the forms provided to new employees are: ADA Request Accommodation 275-000- 001-c; Disciplinary Actions 250-012-011-j; EEO Affirmative Action Policy 001- 275-001-v; and Employment Discrimination Complaints 275-010-001-l. Respondent’s written policies and procedures specifically prohibit any employee from engaging in employment discrimination, workplace harassment, or retaliation. Moreover, Respondent has established detailed written procedures for reporting and investigating all allegations of discrimination, harassment, or retaliation, consistent with Florida and Federal law. Petitioner’s Employment with Respondent On December 19, 2018, Respondent advertised Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, which is part of the Construction section of Respondent’s District 5. The advertisement included a statement regarding Respondent valuing and supporting the employment of “individuals with disabilities.” Further, the advertisement specifically read, “[q]ualified individuals with disabilities are encouraged to apply.” The advertisement provided notice that Respondent complies with section 110.112, has a “Disabilities Affirmative Action Plan,” and will provide a reasonable accommodation upon request. With this advertisement, Respondent was seeking a qualified individual to review “moderately complex” structures plans and technical documents. The successful candidate would offer professional recommendations, resolve design issues, and work collaboratively with Review Committees working on projects in Respondent’s Construction section. The employee would perform structural analysis, design, and calculations, as well as, prepare plans for bridges and highway structures, and offer structural engineering support to both Respondent and consultant staff. The Knowledge, Skills, and Abilities (KSAs) for the position included knowledge of Respondent and industry’s standards, specifications, and manuals, as well as software related to road and bridge construction and design. The candidate would need to be skilled in solving engineering problems, utilizing structural design/analysis software, reading and interpreting structures and roadway construction plans, preparing project scopes of services, and labor costs estimates. The candidate needed to have the ability to “effectively coordinate and communicate with others,” both verbally and in writing, adapt to the needs of various sections within whom they would collaborate, and to establish and maintain effective work relationships. The position required the selected candidate to be able to respond to emergencies, which mandated the candidate be reliable and dependable at times of urgency to restore transportation to normalcy. Finally, the new employee would need to be an effective and professional representative of Respondent, and make recommendations or decisions consistent with Respondent and industry standards. Petitioner submitted a State of Florida application and resume. Petitioner represented his work history on his application as: 3/01/1992-03/31/1995 – Fong & Associates – left for “other opportunity” 2/07/1997-08/31/2006 – Parsons – left for “other opportunity” 07/01/2012-12/31/2016 – TranSystems – left for “other opportunity” 01/01/2017-11/30/2017 – Globetrotters – reason for leaving “slow” 04/01/2018-09/302018 – David Liu (Petitioner seems to indicate he was self-employed) – reason for leaving was “slow” Petitioner’s resume, which accompanied his application, indicated his work history as: 04/18-09/18 – GAI Consultants 01/17-11/17 – Globetrotters (reason for leaving is slow) 07/12-12/16 – TranSystems (Reason for leaving is other opportunities) 12/97-08/06 – Parsons (Reason for leaving is other opportunities) 03/92-03/95 – Fong & Assoc. As required by the position, Petitioner was licensed in the state of Florida as a Professional Engineer, effective November 11, 2018. Petitioner was notified via letter dated January 25, 2019, he was selected for Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, in Respondent’s District 5, effective Monday, January 28, 2019. Petitioner was advised his position was a Career Service position assigned to Broadband Code 17-2199-04, Broadband Title “Engineering.” Petitioner was also advised he would be evaluated at least once annually, and that he would be in probationary status for a period of one year. Further, Respondent’s letter explained that while on probationary status, Petitioner was not considered permanent in the Career Service, would serve at the pleasure of the agency, and would be subject to various employment actions at the discretion of the agency, without right of appeal, in accordance with chapter 60L-33. Petitioner signed Respondent’s Receipt Acknowledgment Form affirming notice and receipt of Respondent’s policies, rules, and procedures, which included the Equal Employment Opportunity/Affirmative Action Policy, Sexual Harassment, Equal Employment Opportunity and Affirmative Action Rule, and Employment Discrimination Complaints Procedure. At hearing, Petitioner testified his disabilities are “diabetes” and “brain cancer,” the latter being diagnosed in January 2017. He admitted never disclosing either of these conditions to Respondent. Petitioner’s Termination After being in the position for just two months, Petitioner was terminated from his position with Respondent effective March 30, 2019. According to the testimony of Respondent’s witnesses, Petitioner was terminated due to his failure to successfully complete his probationary period. Specifically, Petitioner engaged in conduct which violated Respondent’s Standards of Conduct, and failed to meet performance standards during his brief employment with Respondent. According to an internal e-mail from Marisol Bilbao, the District 5 Human Resources Manager, the following conduct led to Petitioner’s dismissal: Does not seem to keep track of his assignments (ERC/emails); Frequently away from his desk, wandering the halls; Does not actively engage in his project assignments; Badge swipe-in log shows inconsistent work schedule since joining Respondent; Has fallen asleep during meetings with consultants in attendance; He was disruptive during meetings, and would leave to take calls which did not appear to be work related; High use of leave time for last-minute personal issues; Does not engage with co-workers on learning Respondent processes (Timesheet, ITP); Has difficulty keeping his work area clean; Stated he did not have time to finish an assignment given to him a week prior and not due for two (2) days; Asking female coworkers out on dates; Asking coworkers to take care of his pets. Gary Skofronick was Petitioner’s direct supervisor. Mr. Skofronick testified that, despite his efforts to assist Petitioner in succeeding in his new position, Petitioner did not seem “interested or engaged or wanting to learn about what we were actually doing in our unit.” Further, as Mr. Skofronck explained to Petitioner, the importance of being engaged is that it “prevents errors” in the construction of bridges and other road projects, which might otherwise lead to catastrophic events. Mr. Skofronick testified to incidents when Petitioner would claim to have just received an email on an assignment shortly prior to the due date, when in fact Mr. Skofronick had sent the email in ample time for Petitioner to complete the assignment. In one instance, the assignment had been given weeks earlier. Mr. Skofronick felt Petitioner did not take “ownership” of his projects. This created a safety risk and potentially impacted the longevity of the structure. According to Mr. Skofronick, Petitioner was far more focused on doing what he wanted to do, versus being accountable for producing a quality work product. Mr. Skofronick testified he had grave concerns about Petitioner’s performance prior to a Value Engineering (“VE”) workshop where Petitioner fell asleep and was a distraction with leaving and making personal phone calls. He was told by several employees of Petitioner’s disruptive conduct and lack of participation in the workshop. At hearing, Petitioner offered no evidence to refute the truth of any of the events or behavior described above. Petitioner’s Charge of Discrimination In his Petition, Petitioner alleges his dismissal from the Department was an act of discrimination based upon his age, race, and disability. Petitioner appeared at the final hearing pro se, and so his testimony was given in narrative form, with some questions posed by the undersigned. When asked to explain “exactly what happened and why it is that you feel you have been discriminated against,” Petitioner testified as follows: MR. LIU: Yeah. In my case, I think that before I was terminated, about, like, two weeks before I was terminated, I went to—they called a VE engineering study in a—in a conference room for a week. So then they—well, I don’t know. It’s hard to tell whether I was sleeping during the meeting or not. It’s hard to tell because I had a disability. I was taking, like, a lot of medication at the same time, so making me very drowsy. And then I—after the—that engineering study, while the roadway manager, who hosted the—the meeting then, he told my boss I was sleeping at the –the study. So I explained to him I had the disability and I was taking lots of medications. An the—so it’s hard to tell I was sleeping or not because I tried to be—I mean, I made a lot—I asked lots of questions during the study, I mean. Then I didn’t see any pictures showing I’m sleeping. So I can tell—because I asked should I report my disability to the HR—HR. They said no. Then they terminated me. I mean I was the department manager when I was working for another consulting firm. Before you terminate somebody you should be—have to conduct a meeting with the employee you are going to terminate. Tell them you need to improve your performance in couple weeks or in couple months. But they—they didn’t conduct such a meet— meeting. They just terminated me right away. And also, I was in this business for 20 plus years. I never see a white person was terminated due to the disability. * * * ADMINISTRATIVE LAW JUDGE WATKINS: Okay. All right. You also testified that you believe that a white employee would not have been terminated under the same circumstances that you were. What is the basis for that belief? MR. LIU: Well, I’m in this business—well, in US, for more than 20 years. I work for, like, a more than, like, ten different firms. Well once I can tell in the—after I was diagnosed with brain cancer, I was terminated, like, eight times for the ten job I have for the last three, four years. Petitioner admitted to sleeping in the meeting but testified it was out of his control; and he admitted to taking personal phone calls during the meeting. He would later attempt to refute this admission, asking to be shown proof, or making a general self-serving claim of others making personal calls. Petitioner refused to accept any responsibility for causing a disruption during the meeting, and attempted to minimize the extent of his involvement. Petitioner could not identify any similarly situated comparator of any other race or age, or anyone with or without a disability, who was permitted to sleep in the meeting, or did in fact sleep in the meeting. Petitioner testified he never asked for an accommodation relating to his handicap, nor did he provide documentation of any medical condition during his employment with Respondent. He then claimed he told the Respondent “verbally” about his disability, but acknowledged he did not provide information about his disability during the recruitment and selection process. Petitioner stated that he was fired from a previous job in 2017 the day after he told his boss he had brain cancer. According to Petitioner, as a result of this experience, he learned not to tell prospective employers he had a disability. Petitioner testified he believed his age was a factor in his termination based upon observations from his past employment, not while working for Respondent. Petitioner testified he has no evidence, other than his opinion, that age was a factor in his termination by Respondent. Petitioner admitted he has no knowledge whether any of his supervisors had issues with his race, age, or disabilities, in general. He admitted his claims are merely his opinion or presumption; or are based upon his experiences which occurred prior to his employment with Respondent. He readily acknowledged that he had no direct evidence of discrimination, nor examples of any statement or conduct motivated by, or related to, his age, race, or disability. In his post-hearing filing (denominated his “Facts Statement”), Petitioner focused on his assertion that he was a “very good employee,” and has an employment history to support that assertion. Attached to his Facts Statement was Petitioner’s resume and list of his publications. There were no proposed findings of fact that in any way supported his allegations of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 8th day of February, 2021, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Adrienne Del Soule, Esquire Florida Department of Transportation Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Dajin Liu Extended Stay America Room 136 1181 North Rohlwing Road Itasca, Illinois 60143 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
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. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
