The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 24, 2007.
Findings Of Fact Petitioner, Linda J. Coonrod, was employed by Respondent, Baptist Hospital (the hospital), since approximately 1993. She became a unit coordinator in approximately 2002 and remained in that position until she was terminated from employment effective September 4, 2007. Petitioner is a licensed practical nurse. Her position as a unit coordinator required her to perform such tasks as answering the phone, coordinating doctors' appointments and doctors' orders, and performing various tasks using a computer. Petitioner’s regular work schedule was Monday through Friday from 6:00 a.m. until 2:00 or 3:00 p.m. Petitioner was scheduled to work on Thursday, August 30, 2007, and Friday, August 31, 2007. However, she did not report to work on either August 30 or 31. Petitioner did not report to work as scheduled on August 30 and 31, 2007, because she had been admitted as a patient to the emergency room of the hospital on the evening of August 29, and remained a patient at the hospital on August 30 and 31, 2007. She was discharged on September 1, 2007, a Saturday. Melanie Kuzma is a registered nurse and is employed by Respondent as the clinical manager of the medical floor. Ms. Kuzma was Petitioner’s supervisor when Petitioner was employed at the hospital. Unfortunately, Ms. Kuzma did not know why Petitioner did not report for work as scheduled on August 30 and 31. Petitioner was being treated at the hospital for chest pain and was given several medications while a patient there. She could not or did not notify Ms. Kuzma of her admission to the hospital and her resulting unavailability to report to work as scheduled. Petitioner did not ask her treating nurse, her treating doctor, or anyone else to inform Ms. Kuzma of her whereabouts. No one else contacted Ms. Kuzma as to Petitioner’s whereabouts. In any event, Ms. Kuzma was not aware of why Petitioner did not report to work as scheduled. While in the hospital as a patient, Petitioner was not in the same unit in which she worked as an employee. Ms. Kuzma was not a supervisor over the area of the hospital where Petitioner was a patient. When Petitioner did not report to work as scheduled on August 30, 2007, Ms. Kuzma called Petitioner’s home. No answering machine or voice mail was available to leave a message, so she and the unit coordinator continued to call Petitioner’s home throughout the day with no success. When Petitioner did not report to work as scheduled the following day, Ms. Kuzma and the unit coordinator continued to call Petitioner’s home. Again, they did not reach Petitioner and had no way of leaving a message. Attempting to call a person who fails to report to work as scheduled is standard practice at the hospital. A person who fails to report to work as scheduled and fails to call in is referred to by the hospital as a “no call, no show.” Ms. Kuzma notified Venus Jones, the Employee Relations Manager for the hospital, that Petitioner had not reported to work as scheduled and failed to call in for two days. Ms. Jones informed Ms. Kuzma that when an employee had two days “no call, no show,” that it would result in discharge from employment with the hospital. Petitioner reported to work on Monday, September 3, 2007, which was a holiday. It was then that Petitioner told Ms. Kuzma that she had been admitted as a patient in the hospital on the evening of August 29, and remained a patient on August 30 and 31, 2007. Ms. Jones has terminated the employment of other employees for “no call, no show” for a two-day period. Ms. Jones does not consider anything unique about Ms. Coonrod’s situation. Ms. Jones did not consider Petitioner’s reason for her “no call, no show” to work to be adequate. On September 11, 2007, Ms. Jones sent a letter to Petitioner informing her that her employment was terminated for failure to report to work and failure to notify her department of her absence. Petitioner acknowledged that her heart problem which precipitated her hospitalization at the time in question was not a disability. This medical condition did not prevent her from working and did not limit her from doing everyday tasks such as getting dressed, driving, brushing her teeth, or other normal life activities. When questioned at hearing about her medical condition, Petitioner responded, “I’m not disabled. I don’t have a handicap because of it.” Further, there is no evidence in the record that anyone employed by Respondent perceived Petitioner to have a disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of February, 2009. COPIES FURNISHED: Linda J. Coonrod 40487 Audiss Road Milton, Florida 32583 Russell F. Van Sickle, Esquire Beggs & Lane. LLP Post Office Box 12950 Pensacola, Florida 32591-2950 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent Solutia, Inc., discriminated against the Petitioner Darlene Fitzgerald, by allegedly denying her employment because of her hearing impairment. Embodied within that general issue is the question of whether, under Chapter 760, Florida Statutes, and other relevant law, the Respondent is an "employer"; whether the Petitioner is handicapped or disabled; whether the Petitioner is qualified for the position for which she applied; whether the Petitioner requested a reasonable accommodation from the alleged employer; whether the Petitioner suffered an adverse employment decision because of a disability; and whether the Petitioner has damages, their extent, and whether the Petitioner properly mitigated any damages.
Findings Of Fact The Petitioner, Darlene Fitzgerald, is a 34-year-old woman who alleges that she applied for a "carpet walker" position with either the Respondent or "AmStaff" in March 1998. The Respondent, Solutia, Inc. (Solutia), is a company which owned and operates a manufacturing plant that manufactures fibers and carpet in Escambia County, Florida. A number of independent contractors operate at the Solutia plant, performing certain phases of the manufacture and related services and operations there, including "AmStaff" and "Landrum." AmStaff is a contractor which operates a tire yarn plant and a Kraft plant at the Solutia facility. AmStaff hires its own employees to work in its operations at the Solutia plant. It is solely responsible for all hiring, counseling, disciplinary and termination decisions concerning its employees. AmStaff has its own payroll, does the Social Security withholdings for its employees, pays workers' compensation premiums on its employees and provides retirement benefits to its employees. Landrum is a staff leasing company which is responsible for certain jobs at the Solutia plant, including carpet walkers. Landrum is solely responsible for all of its hiring, counseling, disciplinary and termination decisions concerning its employees. Landrum has its own payroll, does its own Social Security withholdings for its employees and pays workers' compensation premiums on its employees. A carpet walker is a person who tests carpet for wear and tear. A carpet walker is required to work 40 hours per week and to walk approximately 18 miles a day testing carpet. Neither Solutia nor AmStaff employs carpet walkers. The Petitioner has never been to Solutia's facility or offices and has never gone out to the Solutia plant to apply for a job. She has had no contact with anyone representing or employed by Solutia concerning a job. All of the Petitioner's contacts concerning employment in March 1998, were with either AmStaff or Landrum. The Petitioner testified that she saw a newspaper ad that AmStaff was taking job applications, but never produced a copy of that ad. The Petitioner went to AmStaff to fill out an employment application. AmStaff's office is not at the Respondent Solutia's plant. The Petitioner gave conflicting testimony as to the date she allegedly applied with AmStaff for a carpet walker position. First, she testified that she applied for the position on March 15, 1998, which was a Sunday. After that was established by the Respondent, as well as the fact that AmStaff was closed on Sundays, the Petitioner then maintained that she applied for the carpet walker position on March 19, 1998. This date is incorrect, however, as evidenced by Respondent's Exhibit two in evidence, which is AmStaff's "notification of testing." According to the Petitioner the company name printed on the employment application she filled out was AmStaff. The Petitioner was then scheduled for testing by AmStaff on March 12, 1998, at Job Service of Florida (Job Service). The notification of testing clearly indicates that the Petitioner applied for a job with AmStaff. While at the Job Service, the Petitioner spoke with an individual named Martha Wyse. The Petitioner and Robin Steed (an interpreter who accompanied the Petitioner to the job service site), met Martha Wyse, who never identified her employer. Subsequent testimony established that Martha Wyse was AmStaff's recruiting coordinator. Martha Wyse has never been employed at Solutia nor did she ever identify herself as being employed by Solutia. All applicants with AmStaff must be able to meet certain physical requirements, including, but not limited to pushing and pulling buggies weighing 240 to 1,080 pounds; lifting 50 to 75 pound fiber bags, lifting 60 pound boxes, stacking and pouring 55 pound bags and working indoors in temperatures of up to 100 degrees Fahrenheit. The Petitioner admitted that she could not push or pull buggies weighing 240 pounds; could not lift 50 to 75 pound fiber bags, could not lift 60 pound boxes nor stack and pour 55 pound bags or work indoors in temperatures in the range of 100 degrees. Additionally, the Petitioner admitted that her obstetrician and gynecologist had restricted her, in March 1998, to no lifting or pushing. On September 24, 1998, the Petitioner was involved in an automobile accident. Her doctors restricted her to lifting no more than 25 to 30 pounds as a result of the injuries sustained in the automobile accident. Because of the injuries sustained in the automobile accident, the Petitioner was unable to work and applied for Social Security disability. Apparently she was granted Social Security disability with attendant benefits. AmStaff employees must work around very loud machinery. There is noise from the machines themselves, combined with that of the air conditioning equipment. Horns blow signaling that forklift trucks are moving through the employment area. The machinery also emits a series of beeps that are codes to let employees know to do different things at different times regarding the machinery. Although the Petitioner stated that she had no restrictions concerning her hearing and could hear everything with the help of her hearing aid, she also stated that she could not stand loud noises generated by machines. In addition to the physical requirements, AmStaff employees were required to work rotating shifts. The employees had to rotate between a 7:00 a.m. to 7:00 p.m., shift and a 7:00 p.m. to 7:00 a.m., shift. The Petitioner did not want to work from 7:00 p.m. to 7:00 a.m. Additionally, AmStaff's employees were required to work 36-hour weeks followed by 42-hour weeks on alternating week schedules. The Petitioner did not want to work more than 20-hours per week in 1998, and in particular the months of April through September 1998. She did not want to work more than 20-hours per week, as she did not want to endanger her Social Security income benefits or have them reduced. Landrum did not have an opening for a carpet walker position at the time the Petitioner allegedly applied for that position. The Petitioner did not ask AmStaff or Landrum for any disability accommodations. If an employee is not entirely aware of the sounds and signals emanating from a plant and the machinery within the plant, that employee cannot respond immediately or accurately to situations that may cause problems with the machinery and ultimately could cause injury to the employee or to other employees. If a bobbin is not seated properly on a machine, for example, the machine will begin to produce a clanking noise. If the noise is not heard by the operating employee and the bobbin is not re-seated properly it can become detached from the machine and be thrown by the force of the machine potentially striking either the operator or anyone who happens to be moving through the machine aisle nearby at the time. Further, there are over 300 alarm boxes throughout the plant. These alarms are used in emergency situations. The alarms indicate the type of emergency, the location of the emergency and its severity. There are different types of warnings for vapor clouds and evacuations. All warnings come through that alarm system. An employee must listen for the type of sound or blast, the number of sounds or blasts and the sequence of the sounds or blasts in order to determine the type of emergency and to know how to react to it. The Petitioner was unemployed from September 24, 1998 until April 2000, when she became employed at Walmart. She left her employment at Walmart in July of 2000. After leaving Walmart the Petitioner has not been employed and has not looked for work. She apparently worked at Popeye's Fried Chicken for an undetermined period of time after March 1998. From April to September of 1998, she voluntarily restricted her work to no more than 20-hours per week in order to keep from reducing her Social Security disability benefits.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 December, 2001. COPIES FURNISHED: Danny L. Kepner, Esquire Shell, Fleming, Davis & Menge, P.A. 226 South Palafox Street, Ninth Floor Pensacola, Florida 32501 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practices alleged in Petitioner's charge of discrimination and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since June 2008, employed as a "per diem" switchboard operator at Holy Cross Hospital. She was employed as a part-time switchboard (PBX) operator in University's PBX Department from July 25, 2005, until she resigned on October 26, 2008.6 As a University switchboard operator, Petitioner was responsible for answering and appropriately handling and routing, with dispatch, incoming calls (including "codes," which are emergency calls) to University's switchboard during her shift. The manager of University's PBX Department when Petitioner was hired was Eleanor Dingus. At no time did Ms. Dingus have occasion to discipline Petitioner, nor did Ms. Dingus ever receive any complaints from other operators about Petitioner's "performance on the switchboard." Gloria Gonzalez replaced Ms. Dingus as the PBX manager in July 2006, and has held that position ever since. At all times material to the instant case, directly under Ms. Gonzalez in the chain of command in University's PBX Department was Cathy Hudson, the PBX supervisor. Reporting to Ms. Hudson were three switchboard operators who served as "team leaders," one of whom was Miriam Reyes. At the bottom of the chain of command were Petitioner and approximately three other non-"team leader" switchboard operators. The PBX Department provided switchboard services on a 24-hour per day, seven-days a week, basis. At all times, there was either one operator or two operators (each using separate "consoles") taking calls. When there were two operators on duty, one operator's not picking up calls, or "staying on a call for an unusually long amount of time," would result in the other operator's having "more calls to pick up." Petitioner primarily worked the evening shift. "Sometimes she worked alone," and sometimes she worked a shift with another operator. In August 2007, Petitioner received a merit pay increase to $11.90 per hour (from $11.55 per hour) based upon an annual performance appraisal Ms. Gonzalez had completed on July 10, 2007. The appraisal contained the following "Evaluation Summary": Evaluation Summary Strengths/accomplishments: Gladys is a good operator. Very responsible and always on time. Areas for growth: Gladys needs to [acc]ept our Departmental changes in a much more positive manner and not get caught up with the small stuff or negativity in our Dept. This was the last annual performance appraisal that Petitioner received prior to her resignation on October 26, 2008, notwithstanding that, pursuant to written University policy, University employees were supposed to "receive an evaluation at least annually, normally twelve months from their anniversary date (date of hire) or last change of position date (promotion, lateral move, and demotion) . . . in order . . . to monitor adherence to performance standards to manage, develop and motivate individual performance." Prior to her 2007 annual evaluation of Petitioner, Ms. Gonzalez had started receiving complaints about Petitioner's performance from operators who had shared shifts with Petitioner. Over time, the complaints became more numerous. According to what the operators had told Ms. Gonzalez, Petitioner had been "slow answering [calls]"; kept "the switchboard on busy"; "take[n] her time getting to the switchboard at times"; and on occasion, "stay[ed] [on] too long with a caller." These were things that Ms. Gonzalez herself had personally observed. Initially, Ms. Gonzalez just verbally counseled Petitioner about these issues. Petitioner "would sometimes get upset" during these counseling sessions. In November 2007, Petitioner was formally disciplined for "unsatisfactory performance regarding receiving calls." The discipline she received was in the form of a "written warning" contained in a Notice of Corrective Action prepared by Ms. Hudson (the PBX supervisor and Ms. Gonzalez's second-in- command) and approved by Ms. Gonzalez. Petitioner was given a 30-day (probationary) period to improve her performance. The decision to place Petitioner on probation was made jointly by Ms. Gonzalez and Jennifer Lindsey, University's human resources operations manager. Ms. Gonzalez monitored Petitioner's performance on the switchboard during her probationary period and determined that it had improved sufficiently to warrant Petitioner's return to non-probationary status, without the imposition of any further disciplinary action. Unfortunately, Petitioner's performance deficiencies subsequently "resurfaced." On May 20, 2008, after receiving a complaint about Petitioner from Ms. Reyes (one of Ms. Gonzalez's three "team leaders"), Ms. Gonzalez prepared and gave to Petitioner a Notice of Corrective Action, reflecting that she was issuing Petitioner a "verbal warning" for "[n]ot responding to the switchboard in a timely manner." The following "details of the . . . infraction" were given in the notice: Gladys was informed that she would take over the switchboard at 4 pm on 5/12/2008 for a department meeting. She did not turn her switchboard on at that time and calls started to accumulate. Miriam asked Gladys to take over the switchboard and Gladys did not do so with a sense of urgency. The expectation going forward is that Gladys will answer the switchboard as soon as it buzzes. The notice also contained the following "Corrective Action Plan": [On] 11/21/07 [Petitioner] was given 30 days for performance improvement and although the plan was completed on 1/9/08, previous performance concerns have resurfaced with the timely answering of the switchboard. It is our expectation that within 30 days we will be able to review her performance with answering calls and be able to notice significant improvement. When presented with the notice, Petitioner wrote on it, under "Employee Comments," the following: "This was one incident on our meeting day. I do remember when it occurred." The notice had been presented to Petitioner by Ms. Gonzalez at a meeting between the two at which Ms. Lindsey had also been present. As University's human resources operations manager, it was Ms. Lindsey's responsibility to make sure that employees met the physical requirements of their position and were otherwise fit for duty. One of the physical requirements of the position Petitioner held was to "[h]ear alarm, telephone/tape recorder/normal speaking voices." During the May 20, 2008, meeting at which Petitioner was presented with the Notice of Corrective Action, Ms. Lindsey "asked [Petitioner] if [Petitioner had] heard the switchboard." Petitioner "perceived th[is] as a statement of age discrimination by Ms. Lindsey"7 (albeit one that did not "affect [her] job"). Despite what Petitioner may have believed, in making such an inquiry, Ms. Lindsey was simply seeking to find out if the reason for Petitioner's not "timely answering . . . the switchboard" was that she had a hearing problem. Petitioner responded to Ms Lindsey's question by telling Ms. Lindsey that "she did hear the calls, but that . . . the calls pile up all the time." Ms. Lindsey required Petitioner to review a Position Minimum Requirement[s] Checklist. After reviewing the document, Petitioner signed it, indicating that she believed that she met all of the requirements of her position. Some time after the May 20, 2008, meeting, Ms. Gonzalez heard from Ms. Hudson that Ms. Reyes had reported being asked by Petitioner, in a confrontational manner, whether it was Ms. Reyes who had complained about Petitioner's "[n]ot responding to the switchboard in a timely manner" on May 12, 2008. Ms. Gonzalez thereafter personally contacted Ms. Reyes to find out what had happened during this post-May 20, 2008, incident involving Ms. Reyes and Petitioner. Ms. Reyes, when contacted, told Ms. Gonzalez that Petitioner had "threatened" her. The matter was brought to the attention to Ms. Lindsey, who made the decision to suspend Petitioner for three days. The suspension was "for the purpose of conducting a fact-finding investigation" to determine whether Petitioner, in her dealings with Ms. Reyes, had violated University's Workplace Violence Policy (HR-2000-009), which provided, in pertinent part, as follows: POLICY University Hospital and Medical Center is committed to providing a safe workplace for all employees, patients, physicians and visitors. Workplace violence of any type committed by or against employees, patients, physicians or visitors will not be tolerated. PROCEDURE A. To ensure safe and efficient operations, University Hospital and Medical Center expects and requires all employees to display common courtesy and engage in safe and appropriate behavior at all times. * * * The following list of behaviors, while not all inclusive, provides examples of conduct that is prohibited. * * * Making threatening remarks; Aggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress; * * * Reporting Procedures Any potentially dangerous situation must be reported to a Supervisor, Security Department or Human Resources. Reports can be made anonymously and all reported incidents will be investigated. Reports or incidents warranting confidentiality will be handled appropriately and information will be disclosed to others on a need-to-know basis only. All parties involved in a situation will be counseled and the results of the investigation will be discussed with them. Employees are expected to exercise good judgment and to inform Security and/or Human Resources if any employee, patient or visitor exhibits behavior which could be a sign of a potentially dangerous situation. Such behaviors include but are not limited to: * * * Displaying overt signs of extreme anger, hostility, resentment or stress; Making threatening remarks; * * * e. Display of irrational or inappropriate behavior. * * * During the investigation, Petitioner submitted to Ms. Lindsey a "rebuttal" statement, dated May 29, 2008, which read as follows: This serves as notification that I am in complete disagreement with any claims made about my work performance as stated by Gigi Gonzalez. Gigi stated on 5/20/08, with Jennifer Lindsey in HR as witness, that a team leader Miriam Reyes said there were two calls backed up on the switchboard when we were changing shifts on Monday 5/12/08. She had already signed off and was abruptly leaving the office without checking if I was logged in before she signed off. Both calls were answered without problem or complaint by the callers. It is a normal occurrence when more than one call comes in at once for them to be what she referred to as "backed up." Miriam signed off the switchboard before checking if I was signed on. I received a 30 day probation disciplinary action and she did not. Per our work instruction, an operator is not to leave the position before a relief operator is available. I find the comment made by Jennifer "can you still hear the phone" a discriminatory reference to my age of 76-years-old. Furthermore, I was called at home by Jennifer Lindsey on 5/29/08 [and] put on involuntary suspension without pay for 3 days. Jennifer claimed that since I asked Miriam what she said about the incident that it was inappropriate. I was not asked about the situation. Rather I was interrogated. I have a right to know what is causing a disciplinary action . . . on my record. I also have the right to dispute or state my complaints without retaliation. Unpaid suspension without a proper investigation was undue hardship and a measure of retaliation. Since I was told I must sign the probation notice whether I agree with it or not, I request this to be in my personnel file and sign[ed] as received and reviewed by my supervisor as previously stated orally in the said meeting on May 20, 2008. This claim is unwarranted and causes undue financial hardship. Following the completion of her investigation, Ms. Lindsey determined that there was "insufficient evidence" to conclude that Petitioner had violated University's Workplace Violence Policy. Petitioner was put back on her normal work schedule and paid for the three days she had been suspended (and had not worked). Ms. Lindsey's "insufficien[cy]" determination was set forth in the following written statement Petitioner was given (and which she signed) on June 5, 2008: After an investigation was conducted on the incident that occurred on May 23, 2008, it is concluded that a discussion between Gladys and a co-worker did take place regarding Gladys' verbal warning for performance on May 20th. Gladys does admit to questioning her co-worker regarding information she may have provided to the manager of PBX regarding her performance. There is insufficient evidence to support that Gladys threatened her co-worker or that she was verbally abusive in any way. In the future Gladys will restrict her conversations with Miriam to business- related activities. This means only communication that must take place for her to perform the functions of her job. Any unnecessary communications or interactions may result in disciplinary action. In the future it is expected that Gladys will follow the Employment Dispute Resolution policy HR 2006-416 to express any disputes or state any complaints that she may have. A copy of this policy is being presented to Gladys today for reference. Gladys will be paid for the days that she was suspended in order to conduct this investigation. In late June 2008, in accordance with the "Corrective Action Plan" set forth in the Notice of Corrective Action she had given Petitioner, Ms. Gonzalez reviewed Petitioner's performance in the area of "answering calls." Ms. Gonzalez, in a document that she prepared and presented to Petitioner on or about July 18, 2008, described the "results" of that review as follows: Operator Gladys Norris has completed her performance improvement plan as of Sunday 6/29/08. In the course of the 30 days, I have been able to observe Gladys on the switchboard. Gladys has improved greatly. She has answered the board much more quickly. She did not let the board pile up. She put the callers on hold and then came back to the calls. I am confident that Gladys understands and is taking seriously her switchboard duties. She is very much aware that whenever possible, we should not let the calls pile up as emergency codes come through the switchboard. At around this same time (mid-July 2008), Petitioner learned that she needed to have emergency vascular surgery, and she so informed Ms. Gonzalez via an e-mail message, sent the evening of July 17, 2008, which read, in pertinent part, as follows: * * * . . . . But last week I had to have some tests done rather quickly and unfortunately have to have an unexpected urgent surgery performed (vascular nature). The doctor called me late this afternoon and said he has scheduled me for next Wednesday July 23rd. At this writing I cannot say how long I will be out from work but he did say at least three or four weeks for recovery. I will keep you apprised of my situation. You may have me on medical leave also. I will not be working anywhere during my recovery period so I cannot list any hours right now. Petitioner was granted leave for this "unexpected urgent surgery," as well as for her "recovery period." When she returned to work from leave, Petitioner was given her work schedule for September, which had her working the hours and days she "usually worked." Her schedule for September, however, was subsequently changed and, to her displeasure, she had to work three "overnight," Saturday night/Sunday morning shifts (from 11:00 p.m. to 8:00 a.m.) that month. She had never before, as a University employee, worked an "overnight" shift. When Petitioner asked Ms. Hudson why she had to work these "overnight" shifts, Ms. Hudson responded, "That's just the way it is." Up until September 18, 2008, throughout her employment at University, Petitioner had used a University-provided headset when working at the switchboard. On September 18, 2008, her headset and those of the other employees in the PBX Department were taken away in anticipation of their being replaced by new headsets (from Verizon). That same day, Petitioner and the other switchboard operators received the following e-mail from Ms. Gonzalez, informing them that they would soon be experiencing an uptick in call volume: Subject: Pavilion[8] Calls Ladies, Please note that starting Tuesday morning, we will be getting all the Pavilion[']s calls. There will be more Ext: 2221. Please make sure that you go over all Ext and Pavilion info. Keep in mind that call volume is going to increase. So do not spend a long time on any one call. Remember the time allowed for each call is 24 seconds per call. The Hospital wants a live person to answer at all time[s]. Also make sure that you know how to page all Pavilion calls over head. So ladies, when you clock in, and enter the PBX office, you must be ready to log in and start to work immediately. Please let me know if you have any further questions. Due to delays, it was not until November (approximately two months later) that all of the old headsets were replaced by new ones. The first new headsets came in a group of three.9 They arrived in the first half of October and were given to Ms. Gonzalez (the PBX manager), Ms. Hudson (the PBX supervisor), and Ms. Reyes (one of the three "team leaders"). On October 15, 2008, Ms. Gonzalez held a departmental meeting at which she discussed "what was going on with the headsets." Petitioner was at the meeting. From September 18, 2008, until her resignation on October 26, 2008, Petitioner had to use a "hand-held phone," instead of a headset, to answer calls coming in to University's switchboard. Approximately two weeks after she had started using the "hand-held phone," Petitioner began experiencing pain in her wrists, arms, shoulders, neck, and lower back. She visited her primary care physician, Greg Sherman, M.D., for treatment of the pain. The pain went away five or six weeks after she had stopped working at University. All told, the pain lasted no more than ten weeks. Based on what she had been told by Dr. Sherman,10 Petitioner attributed the pain she was experiencing during this period to her using a "hand-held phone" when working the switchboard at University. Despite the onset of the pain, Petitioner continued to work and perform her job duties at University for approximately three or four weeks until she felt she could do so no longer and resigned. During this period, she made her supervisors aware that she was in pain. On the morning of October 2, 2008, during a telephone conversation, she told Ms. Hudson that her "wrist, arms and neck hurt." Ms. Hudson did not ask Petitioner for any further details, and Petitioner did not provide any. Two weeks later, on October 16, 2008, at 10:34 p.m., Petitioner sent Ms. Hudson the following e-mail: Dear Cathy, Regarding my PTO [Paid Time Off] request for Nov 13, 14, 15, 16 (Thurs, Fri, Sat, Sun) I am wondering when I will know if it has been approved. Also do you know when my headset will arrive? I went to the doctor yesterday because I have had pain for a week now in my shoulders and wrists. I explained that I have been working without my headset for the past four weekends. He stated that that was likely the cause of the strain. I do hope the headset will arrive soon. A week having passed without Petitioner's having received a reply from Ms. Hudson, Petitioner, at 9:34 p.m. on October 23, 2008, sent the following e-mail to Ms. Gonzalez, to which Ms. Gonzalez never replied: Re: Waiting for an e-mail answer Hello Gigi, I sent an e-mail to Cathy regarding the headsets on Oct 14th.[11] I have not received a reply as of today. I understand a few operators have already received their headsets. Shouldn't we all have them as we work the same consoles? Working without my headset for the past 4 weekends has caused problem[s] in my wrists and shoulder/neck which I had to see a doctor [about] last week. After taking off earlier in the week because of the pain she was experiencing, Petitioner "tried to come in" to work at University on October 26, 2008, but she did not stay her entire shift. Because she did not know when she "was going to get a headset" and she had experienced "a lot of pain" working without one, Petitioner decided to resign her position at University. At 11:05 a.m. on October 26, 2008, she gave notice of her resignation by sending Ms. Lindsey the following e-mail: I hereby give notice that today, Sunday October 26, 2008 will be my last day at University Hospital. I have used a headset since the first day of employment in July 2005 when on PBX. Over the past five weeks I have been forced to work without my headset. My physical condition has been aggravated to the point I am forced to resign. Management has been uncooperative in this problem as well as many others I have addressed that have gone unanswered. Despite the pain she was experiencing at the time, Petitioner continued working, without interruption, as a switchboard operator at Holy Cross Hospital, where she had the use of a headset. To date, University has not filled the position from which Petitioner resigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding University not guilty of the unlawful employment practices alleged by Petitioner in her charge of discrimination and dismissing the charge. DONE AND ENTERED this 12th day of April, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 April, 2010.
Findings Of Fact The Petitioner, Melvin Blum ("Mr. Blum"), was employed by the Respondent National Enquirer, Inc. ("National Enquirer"), 2/ from 1962 until his voluntary resignation in June 1980. The National Enquirer publishes a weekly tabloid newspaper in Palm Beach County, Florida. Since joining the National Enquirer, Iain Calder ("Mr. Calder") has held various positions as an employee and officer of the publication and its affiliated companies. Mr. Calder first joined the Enquirer in 1964 as London Bureau Chief. In 1967, he came to the United States as articles editor, a position he held until the early 1970's. In due course, he was promoted to senior articles editor, executive editor, editorial director, and then editor in 1975. In 1976, Mr. Calder became President of the National Enquirer. After the death of the owner, Mr. Pope, in 1988, Mr. Calder became Chairman of the company in order to sell the publication. After new owners acquired the publication, Mr. Calder became editor-in-chief of the publication and executive vice- president of the parent company. In December 1995, Mr. Calder stepped down as editor-in-chief and president and assumed the position of editor emeritus. Mr. Calder has known Mr. Blum for close to 30 years. Mr. Calder was familiar with Mr. Blum's work. When Mr. Calder was editorial director and then editor, Mr. Blum indirectly reported to him through his department head. Additionally, Mr. Calder would occasionally sit in as managing editor to learn the business of layouts. During those occasions, he would directly supervise Mr. Blum. While not close friends, Mr. Calder and Mr. Blum occasionally socialized outside of work. In Mr. Calder's view, while Mr. Blum was talented in using photographs, he had problems with headlines and with writing. Malcolm Hayes ("Mr. Hayes") first joined the National Enquirer in 1973. On his first stint at the publication, he held the positions of deskman, assistant editor, associate editor, and then managing editor. Mr. Hayes left the National Enquirer in 1986. Upon his return in 1989, he served in the position of assistant managing editor and then assumed his current position of managing editor upon the death of the prior managing editor, Nat Chrzan. Mr. Hayes first met Mr. Blum when he joined the National Enquirer in 1973. They worked together for seven years. While working together, Mr. Hayes had an opportunity to observe Mr. Blum's work. It was Mr. Hayes' general impression that while Mr. Blum was efficient, thorough, and had good layout skills, he had problems with words and headlines. Mr. Blum has had a hearing impairment since he was 17 years old. During the 18 years Mr. Blum worked at the National Enquirer, he wore a hearing aid. Both Mr. Calder and Mr. Hayes knew Mr. Blum wore a hearing aid while he worked at the National Enquirer. Neither Mr. Calder nor Mr. Hayes felt it was an impediment to his work. It was never considered a negative factor. Mr. Calder believed he communicated well with Mr. Blum while he worked at the publication. Mr. Calder did not view it as limiting Mr. Blum's ability to perform his job in any way. In July of 1990, Mr. Blum wrote to Mr. Calder inquiring about the possibility of returning to work at the National Enquirer. Mr. Calder wrote a cordial letter in reply indicating that there were no openings for the position of a deskman. Additional letters were exchanged between Mr. Blum and Mr. Calder. In a February 1, 1991, letter, Mr. Calder wrote to Mr. Blum informing him there were still no available positions on the "desk." He further indicated that should a position become available, it would be the decision of the Managing Editor whether to rehire him. While Mr. Calder had the authority to hire and always retained veto power, it was his philosophy and policy not to mandate that his department heads hire a particular individual. Upon the resignation of a key member of Mr. Hayes' staff, Mr. Hayes attempted to fill a position on the "desk" with an individual who had in addition to "desk" experience, desktop publishing skills and management potential. The paper was moving into computers and was looking for someone with those skills. Additionally, Mr. Hayes' deputy at the time indicated that he did not want to serve in that role and fill-in for Mr. Hayes in his absence. As the term is used at the National Enquirer, a deskman is an individual who is a layout editor and writes headlines, writes captions, edits copy, and basically puts the pages together. Two members of Mr. Hayes' staff recommended William Condie ("Mr. Condie") for the position. Both individuals had worked with Mr. Condie when they were employed by the New York Post. Mr. Condie was at the Post at the time he was recruited. The National Enquirer had previously been very successful in recruiting newspaper people from the New York Post. Mr. Condie met both the experience requirements and the skill requirements that the National Enquirer was seeking. Mr. Condie had been involved in "desk work" for thirty years. He had served in various "desk" capacities at the London Daily Express, New York Daily News, and New York Post. Mr. Condie had a lot of experience in laying out pages. He was also a very good headline writer with good word skills. In addition to his extensive desk experience, Condie had worked with computers both at the New York Daily News and the New York Post. He also had a personal computer at home and was somewhat of a computer buff. Mr. Condie's background also reflected management experience. Prior to coming to the National Enquirer, Mr. Condie held the position of Night Managing Editor at the New York Post; the Post was considered one of the premier tabloids in the country. Mr. Condie was responsible for supervising all aspects of production of the newspaper after the first edition. He had performed in other management positions as well. Mr. Calder had known Mr. Condie for more than 30 years. Mr. Calder had an opportunity to work with Mr. Condie when Mr. Condie had previously worked at the National Enquirer. At one point in time early in their careers, Mr. Calder had reported to Mr. Condie. Based on his experience and skills, Mr. Condie was invited to the National Enquirer for a try-out in May 1991. At the end of the trial period, Mr. Condie was offered a position. The decision to hire Mr. Condie was made on or before June 5, 1991. Mr. Hayes made the decision to hire Mr. Condie which was approved by Mr. Calder. Mr. Condie began his full-time employment at the National Enquirer on July 8, 1991. The National Enquirer hired Mr. Condie on the basis of his qualifications. Since Mr. Condie was hired, no other positions on the "desk" became available at the National Enquirer. Neither Mr. Hayes nor Mr. Calder viewed the hiring process as a competition between Mr. Condie and Mr. Blum. Had Mr. Condie never been a candidate, Mr. Blum would not have been selected for the position. Mr. Blum lacked the qualifications that the National Enquirer was looking for in a candidate. Both Mr. Hayes and Mr. Calder were familiar with Mr. Blum's abilities and limitations. Mr. Hayes had worked with Mr. Blum for seven years. During that time, Mr. Hayes had an opportunity to observe Mr. Blum's professional work. While he felt Blum was efficient and thorough and had good layout skills, he felt Mr. Blum had problems with words and headlines. The nature of the publication had also changed since Mr. Blum had worked at the National Enquirer. Mr. Blum also did not have the management experience that Mr. Hayes was looking for in a candidate. During his entire time at the National Enquirer, Mr. Blum was never in a management position. Since leaving the National Enquirer, Mr. Blum's only managerial experience was at Senior Power, a free newspaper he started with another individual. While Mr. Blum was responsible for all business decisions, editorial decisions, and finances at Senior Power, it was a naive business concept and a financial failure. Given their personal experience with Mr. Blum, both Mr. Hayes and Mr. Calder felt that his personality was not conducive to supervising people. Additionally, Mr. Blum had no desktop computer experience at a major tabloid. Given their familiarity with Mr. Blum's experience and skills, neither Mr. Hayes nor Mr. Calder considered Mr. Blum a viable candidate for the position for which Mr. Condie was hired. Mr. Blum has no written evidence that the National Enquirer discriminated against him on the basis of his hearing. Mr. Blum knows of no statements made by Mr. Hayes, Mr. Calder, or anyone else evidencing discrimination against him on the basis of his hearing. In fact, Mr. Blum believes he was not rehired because of a grudge. Mr. Blum's hearing impairment played no role in the National Enquirer's decision not to rehire him. Mr. Blum filed his Charge of Discrimination on March 26, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED this 27th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1996.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (DOC) due to Petitioner's race, sex, and handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Thaise Hampton, is a female African- American. On January 20, 1995, Hampton was hired by the Correctional Educational School Authority (CESA) to work as a teacher at DOC's Apalachee Correctional Institution (ACI). Hampton had not worked before that time. During the 1995 legislative session, CESA was abolished by the State of Florida Legislature. CESA’s education and job training program functions were transferred to DOC along with most positions, inclusive of Hampton’s. Hampton was placed on probationary status as a DOC employee, effective July 1, 1996. On April 12, 1996, Hampton had an on-the-job injury when she slipped and fell in the cafeteria of the institution. The State of Florida's Division of Risk Management (Risk Management) administered the workers’ compensation case for the State of Florida. Hampton was treated by a physician and excused from work because of the injury. Hampton was evaluated by Michael W. Reed, M.D., an authorized treating physician for Hampton’s work-related injury, on July 15, 1996. By correspondence dated July 22, 1996, Dr. Reed reported his evaluation of Hampton. Dr. Reed found that Hampton suffered from lumbar degenerative disc disease. He recommended physical therapy and light duty work restrictions on lifting objects greater than 20 pounds. On August 29, 1996, DOC received further correspondence forwarded by Risk Management from Dr. Reed. In that correspondence dated August 28, 1996, Dr. Reed stated that Hampton could return to work full duty and that she had reached Maximum Medical Improvement, with a 0 percent permanent impairment rating. He did not indicate that there were any work restrictions. Hampton reported to work on September 3, 1996. At that time, she was utilizing a walker to ambulate around the compound. Joseph Thompson, the Warden at ACI, and the hiring/firing authority over Hampton at that time, expressed security concerns that Hampton was utilizing a walker. He asked the personnel manager, Derida McMillian, to inquire into the situation. As a result, McMillian contacted Paul Bohac, Hampton’s supervisor, and requested that both he and Hampton come to her office. She then informed Hampton that she was not authorized to utilize a walker unless a physician had prescribed one for her use. She told Hampton that she was in receipt of a letter from Dr. Reed that indicated she could return to work on regular duty with no restrictions and that a walker represents such a restriction. McMillian then told Hampton that she could not use a walker at work until she produced a medical report indicating a need for same. She also told Hampton that a physician’s statement would be needed or her leave would not be authorized. Hampton stated that she understood and would provide the appropriate medical reports on September 5, 1996. McMillian relayed Hampton’s statements that she would provide documentation by September 5, 1996, to Margaret Forehand, a personnel technician who was a liaison with the Division of Risk Management at that time. Because no such documentation was received by September 5, 1996, Forehand called Hampton at home on September 9, 1996. Hampton advised her that she would get her attorney to obtain a doctor’s statement. On September 10, 1996, Hampton called Forehand and said that her lawyer would obtain a doctor’s statement and send it to DOC. On September 17, 1996, Hampton contacted Forehand with questions regarding her paycheck received on September 13, 1996. Forehand advised that DOC had not received the physician’s statement that was to have been provided on September 5, 1996. Forehand reiterated at that time that Hampton needed to provide a doctor’s note as to her status. Hampton told Forehand that her attorney would be taking care of the matter. On September 18, 1996, Forehand spoke with Alice Taylor at the Division of Risk Management and was advised that Risk Management had received a letter from a Dr. Ayala regarding Hampton’s condition. Taylor told Forehand that Ayala's letter did not change anything--Hampton had not been removed from work or prescribed a walker. Neither McMillian nor Forehand was aware of any prescription for a walker by a Dr. Randall dated June 3, 1996, until March 11, 1997, when they were shown the prescription. Additionally, Forehand had no record indicating that Dr. Randall was approved by the Division of Risk Management as a treating physician. On September 19, 1996, Hampton appeared at the personnel office. She did not have a prescription for a walker at that time. Thus, Hampton was considered to be on unauthorized leave status since September 5, 1996. Warden Thompson terminated Hampton’s employment on September 19, 2001, for excessive unauthorized absences. Hampton alleged that several white male employees and an inmate were allowed accommodations: Mr. Ammons; Paul Bohac; and inmate John Peavy. Warden Thompson testified that he approved a request for Mr. Ammons to use a wheelchair after receiving a request from the CESA Personnel Office. He was informed that Mr. Ammons would be retiring in 30 days. Mr. Ammons was not a DOC employee. Warden Thompson stated that he was not aware that Paul Bohac had worn a back brace into the office or that he had brought an ergonomic chair into the office. If he had known that he was using special medical equipment, he would have requested a prescription for the devices. Paul Bohac was not utilizing a walker. Warden Thompson was not aware that inmate John Peavy was issued a walking stick; however, inmates were allowed to utilize assistive walking devices if the medical department authorized it. Warden Thompson approved Hampton’s termination because of her unauthorized absences. She refused to work at full duty or provide a physician’s statement documenting any work restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Marva A. Davis, Esquire 121 South Madison Street Post Office Box 551 Quincy, Florida 32353-0551 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Bar-B-Que Management, Inc. d/b/a Sonny's Real Pit Bar-B-Q (Respondent), discriminated against Petitioner, Dorine Alexander (Petitioner), based on an alleged disability and her race.
Findings Of Fact Respondent is a management company with employees at 16 franchise-owned restaurants in central and north-eastern Florida. Respondent has employment policies that prohibit discrimination on the basis of race and disability. It also has policies that provide for reasonable accommodation of employees with disabilities. Respondent's policies inform employees about the procedure to be followed in reporting perceived race or disability discrimination. The policies prohibit retaliation against employees who report perceived discrimination. Petitioner is an African-American female. Respondent employed her as a cashier in its Belleview, Florida, location from July 14, 2008, to April 5, 2009. At the beginning of her employment, Petitioner was aware of Respondent's policies relative to discrimination. Respondent provided her with a copy of its Team Member Handbook containing the policies. Petitioner's duties included working as a cashier in both the drive-thru and at the front counter. She also was responsible for stocking all takeout areas and completing side work. Initially, Petitioner's job required her to perform deck scrubbing. However, when Petitioner notified her manager that deck scrubbing made it difficult for her to breathe, she no longer had to perform that task. Petitioner never complained that she continued to have breathing difficulties even when others were performing deck scrubbing. Respondent accommodated Petitioner's alleged breathing problem even though Petitioner never provided Respondent with requested medical documentation indicating that she had asthma or any other respiratory difficulties. There is no competent evidence to show that Petitioner is disabled. In the Fall of 2008, Respondent demoted the general manager at the restaurant where Petitioner worked. The demotion was based on poor performance, including not enforcing company policies and failing to hold employees accountable for compliance with company policies and performance standards. Respondent directed the new management team to enforce company policies and to issue discipline when appropriate. The directive was communicated to the restaurant's employees. After the change in management, Petitioner received numerous disciplinary write-ups. The write-ups included the following: (a) violation of Respondent's policy against use of cell phones during working hours; (b) violation of Respondent's policy against smoking on the premises and/or parking lot while in uniform during working hours; (c) violation of Respondent's attendance policy, requiring employees to arrive at work on time and to attend mandatory meetings unless excused; (d) violation of Respondent's cash-handling policy, resulting in cash overages and shortages; and (d) violation of Respondent's work performance standards by failing to stock supplies and complete other side work duties. Non-black employees received written discipline for the same violations as Petitioner. At least one white employee was terminated for violating the cell phone usage policy. Prior to February 2009, Petitioner worked an average of 25 hours per week. The fewest number of weekly hours worked by Petitioner after February 2009 was 19 hours. Petitioner worked 19 hours for only two weeks. Petitioner asserts that she was not allowed to "pick up" extra shifts when another cashier went on vacation for five days. Scheduling requests had to be submitted by Tuesday for the next week's schedule. Petitioner failed to timely request any of the extra available shifts. Instead, she approached the scheduling manager after the schedule was already completed. Despite the lateness of her request, the scheduling manager revised the schedule to assign Petitioner one extra shift. Beginning in January 2009, Respondent's schedules were created and posted on-line through a computer program called Hot Schedules. At all times relevant here, the schedule was posted late only three times. The late posting affected all employees, not just Petitioner. Petitioner asserts that she was assigned to work the drive-thru more than white employees. This assertion is without merit as shown by the following statistics. Petitioner worked 59 shifts between January 1, 2009, and her resignation on April 5, 2009. Respondent assigned Petitioner to work in the drive-thru on 23 of those shifts, approximately 39 percent of the total shifts. Petitioner worked at the front counter for the remainder of her shifts, approximately 61 percent of the total shifts. Two white cashiers, Brittany Knaul and Sarah Liles, worked a comparable number of shifts between January 1, 2009, and April 5, 2009. During that time, Ms. Knaul worked 54 shifts, with 25 shifts or 46 percent assigned to the drive-thru. Of the 86 shifts worked by Ms. Liles, 33 shifts or 38 percent were in the drive-thru. On the other hand, Beatrice McKoy, a black cashier, worked almost exclusively at the front counter between January 1, 2009, and April 5, 2009. Petitioner sought out and spoke with Respondent's Director of Operations, Josh McCall, on several occasions during her employment. The conversations involved her requested accommodation and complaints about the disciplinary write-ups. Petitioner never reported any perceived race discrimination. On one occasion, Mr. McCall asked Petitioner if she believed she was being discriminated against based on her race. Petitioner denied that she was being treated differently from non-black employees. Petitioner submitted a letter of voluntary resignation on March 30, 2009. Her last day at work was April 5, 2009. Petitioner asserts that she was constructively discharged. However, Petitioner failed to notify Respondent of the alleged discrimination until she spoke with Respondent's Area Manager on April 6, 2009, after her resignation and last day at work. Shortly after her last day at work for Respondent, Petitioner voluntarily resigned her other job with Internet Access. Petitioner resigned that job due to a dispute with her manager. Petitioner obtained subsequent employment which ended when that company closed in June 2009. Petitioner remained unemployed until February 2010. The only employment she held in the intervening six months was occasional work assisting her sister, who is a home health aide.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2010. COPIES FURNISHED: Joanne B. Lambert, Esquire Jessica A. DeBono, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dorine Alexander 307 Marion Oaks Course Ocala, Florida 34473 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was wrongfully terminated from her position as a hostess with Respondent because of her handicap, in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, a 47-year-old female, was hired by Respondent on or about July 15, 2003, as a part-time hostess at Respondent's restaurant in Cocoa Beach, Florida. The understanding at that time was that she would be called in to work three to four hours a day, three to four days a week, as a leased, at-will employee from SkilStaf. SkilStaf would be the employer of record for wage and payroll reporting purposes. Respondent, BB & D of Cocoa Beach, Inc., is a franchisee of Perkins Restaurant and Bakery and is an employer under the provisions of Chapter 760, Florida Statutes (2003). Petitioner first reported for work on July 17, 2003, and received training as a hostess/cashier by Debra Russell, associate manager, and received the same information about the job requirements, duties, and benefits given to all new hires. During her training, Petitioner was advised that in addition to seating guests and operating the cash register, a hostess would be required to bus tables when the restaurant was busy and the other staff was in need of help, although this requirement was not listed on the printed job description. Petitioner did advise Respondent that she had a disability and that she required a reasonable accommodation in order to perform her job. She stated that several years before she had undergone back surgery as a result of an injury that was not job related and could not perform a job that required heavy lifting. Petitioner advised Russell that she could not bus tables because it would require heavy lifting. Russell asked Petitioner to provide Respondent with a doctor's note advising them of the nature of her disability and what accommodations she required. Petitioner continued to work as a hostess at the Perkins Restaurant through July 22, 2003, and performed the job satisfactorily. She was not asked to bus tables during this period. Petitioner was not called back to work as a hostess after July 22, 2003, and did not receive any notification that she was terminated. Petitioner obtained a note from her physician dated July 28, 2003, which indicated that she was capable of working four to five hours a day as a hostess. This evidence is hearsay. In addition, it is not convincing that Petitioner turned in a copy of the note to management anytime after that date. She tried to talk to management about her status, but was unsuccessful. Although Petitioner did not prove that she is a disabled person, she was perceived to be disabled by her employer. Petitioner testified that she talked to Russell some time in early August. Petitioner claimed that Russell said that she had talked to the owner who said that he did not think Petitioner should be working as a hostess, but should get a desk job sitting down. Russell denied making such a statement. No other evidence was offered to support this statement. Therefore, said statement is uncorroborated hearsay and unreliable, and will not be relied upon as a finding of fact. Petitioner presented evidence that since July 2003, she has been unemployed, in spite of her making reasonable efforts to obtain suitable part-time employment. Respondent demonstrated that Petitioner sought to have several days in a row off after working only three days. Petitioner worked six shifts total during her employment with Respondent. Respondent needed two other part-time hostesses for the other shifts because the restaurant was open seven days a week, 24 hours a day, for a total of 21 shifts per week. Respondent demonstrated that the summer business that year was slower than projected and never picked up. The restaurant business is labor-intensive and accounts for 30 to 40 percent of overhead costs. In order for management to control costs, it must cut back on employees. Petitioner was involuntarily terminated because sales were underperforming projections and labor costs were being controlled by a reduction in force. Petitioner was unable to prove that her termination was the result of her disability or perceived disability and that Respondent's proffered reason for her termination was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice with prejudice. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Shahrooz Banapoor BB & D of Cocoa Beach, Inc. 5590 North Atlantic Avenue Cocoa Beach, Florida 32931 Anne E. Dorfler 700 North Courtney Parkway Apartment 524 Merritt Island, Florida 32953 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the claim of employment discrimination contained in the Petition for Relief must be dismissed due to Petitioner's execution of a release of all claims.
Findings Of Fact On June 29, 2012, Petitioner's employment with Respondent was terminated. On July 24, 2012, Petitioner filed a Charge of Discrimination alleging that he was subjected to discrimination. On August 18, 2012, Petitioner signed an agreement. Under the agreement, Respondent agreed to pay Petitioner $5,000.00, net several items, provided Petitioner did not exercise his right to revoke the agreement within the seven days following execution, as provided in the agreement. Petitioner did not revoke the agreement, and Respondent discharged all obligations under the agreement. In exchange, Petitioner agreed to release Respondent from all claims, damages, suits, complaints, damages, losses and expenses, of every nature, legal or equitable, whether known or unknown, which Olascoaga ever had, now has, or may claim to have, upon or by reason of the occurrence of any matter, cause or thing whatsoever . . . . This release specifically includes, but is not limited to, a release of any and all claims under the Florida Civil Rights Act . . . . There is no contention that Petitioner was not acting knowingly or voluntarily when he executed a release of claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Carlos Olascoaga's Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 11th day of April, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 2014.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”) on or about September 9, 2014, and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and probative facts: TESTIMONY OF PETITIONER, CARYL ZOOK Petitioner, a 61-year-old female born in 1954, worked as a private chef for Mr. Friedkin, owner of Respondent. She began in 2007 and was an “at will” employee, there being no written employment contract. Her duties included providing dinners and other meals at Mr. Friedkin’s residence, catering or assisting him with some events, and overseeing some of the other staff members at his residence. Petitioner was in an auto accident in 2011 and suffered neck injuries. Petitioner required physical therapy, acupuncture, steroid injections, and several x-rays. After Petitioner was terminated from Respondent in September 2013, she underwent surgery to remove several bad vertebrae from her neck area. Due to her neck injury and pain, Petitioner testified that she needed to park close to Mr. Friedkin’s house to carry groceries as a reasonable accommodation. Other than the inference drawn from this scant evidence, there was little, if any, direct or circumstantial evidence presented to prove that Respondent had knowledge of a qualifying disability by Petitioner.1/ Petitioner characterized Mr. Friedkin’s behavior over the years as insulting and abusive, and she endured it for many years. There was an arrangement between Petitioner and Friedkin for him to purchase a home for her to live in. She would repair or remodel the home, and at some point, he would transfer the mortgage and home to her.2/ For the Yom Kippur holiday, Mr. Friedkin contacted Petitioner and instructed her to prepare a dinner for his family and to have it ready at 3:00 p.m. that day. Typically, meals were prepared by Petitioner at Mr. Friedkin’s home. However, this one was prepared at Petitioner’s home because, as she testified, it “needed to be brined” in her refrigerator in advance. Petitioner was admittedly running late and did not have the meal prepared by 3:00 p.m. Mr. Friedkin called her while she was driving to his house but she did not answer the phone. When she arrived at his house, Mr. Friedkin was in his vehicle blocking the driveway. After she parked on the street, Mr. Friedkin got out of his vehicle and began ranting and raving at her, accusing her of being late. He was very upset. He continued yelling and told her that, “Next week you better start looking for a new job.” Petitioner went into the house and left the food in the refrigerator. It was undisputed that the food (a turkey breast) was not given to Mr. Friedkin outside the home because it was not carved or ready for consumption. TESTIMONY OF SHEREE FREIDKIN Mr. Friedkin’s wife testified that Mr. Friedkin had made it clear to Petitioner that he wanted her to prepare a turkey meal and that they would pick it up at 3:00 p.m. at the residence. When she and her husband arrived at their home at 3:00 p.m., Petitioner was not there. They went inside, looked in the refrigerator, and saw that the food was not there. They called Petitioner on her cell phone but she did not answer. They waited for some period of time for her, all the while getting very frustrated and agitated.3/ After waiting more than 30 minutes for Petitioner to arrive, they decided to go to Whole Foods to buy a turkey meal at around 3:40 p.m. On their way, Petitioner phoned them. She said she would be at the house soon, and so, they decided to drive back and meet her. After they arrived back at their residence they had to continue to wait for her to arrive. She finally arrived, sometime after 3:40 p.m., and got out of her vehicle eventually. (Apparently, Petitioner waited in her car for some period of time.) When she got out, Petitioner was in shorts, a sloppy shirt, and her hair was in curlers. Mr. and Mrs. Friedkin found this inappropriate, particularly since Petitioner usually wore an apron and dressed more appropriately in their presence. Mr. Friedkin was very upset and demanded that she give him the food because they were running late to their family function. Petitioner refused, claiming the turkey needed to be sliced. Mr. Friedkin was very angry and used several unnecessary expletives during the course of his conversation with Petitioner. Mr. Friedkin told her something like, “you’re fired” and “don’t show up Monday for work.” Mrs. Friedkin overheard no age, disability, or retaliation-related comments during this heated exchange. TESTIMONY OF MONTE FRIEDKIN He confirmed that Petitioner was his chef and also did some assorted chores and supervision around his house. He directed Petitioner to make a meal and have it ready for them to pick up at his residence by 3:00 p.m. on the day in question. He testified that Petitioner always cooked any food for his family at his residence. When they arrived around 3:00 p.m. at the house, Petitioner was not there, and there was no food. He tried to call her and had to leave a message. They decided to go to Whole Foods to buy the meal. They departed for Whole Foods around 3:40 p.m. His description of the event was consistent with his wife’s testimony. In addition to the delay caused by Petitioner, Mr. Friedkin testified that it was important to him that she was presentable at all times around him and his family. During the confrontation in the driveway, he terminated her employment. He testified that he had experienced some other performance issues with her over the months preceding this event and that she had begun to respond to questions and directives from him in increasingly insubordinate ways. As far as her termination was concerned, he unequivocally denied that her age, a disability, or retaliation was ever considered or motivated his decision. He admitted that Petitioner told him that she had a car accident in one of their vehicles sometime in 2011. However, she continued to work for him for approximately two years after the accident without incident. She did complain to him, at some point, of some neck pain. He denied that Petitioner ever gave him any medical documents verifying or stating that she was disabled. On cross-examination by Petitioner, Mr. Friedkin elaborated that, during the months preceding the food incident, she had become more and more insubordinate, and there was a growing problem with her not following instructions he gave her. In his words, the incident at his residence involving the turkey dinner was the proverbial “straw that broke the camel’s back.” On redirect, Mr. Friedkin denied ever considering any disability and said he did not even know she was “disabled.”4/ TESTIMONY OF ROSARIO DIAZ Another witness, Mrs. Diaz, testified that Mr. and Mrs. Friedkin arrived at the residence at around 3:00 p.m. and came into her office. They wanted to know whether or not Petitioner was there with the food, and whether or not she had called. Diaz told him that she was not there and did not call. Mr. and Mrs. Friedkin then departed. Approximately 30 minutes later, Petitioner came into her office upset and said that she could not believe what had just happened and that Mr. Friedkin had just fired her. Ms. Diaz commented to her that maybe they were upset because she was late. Mrs. Diaz had worked for Mr. Friedkin for nearly 30 years. She interacted with Petitioner at the residence frequently. She testified that Petitioner never complained to her about age, disability, or other discriminatory remarks or comments by Mr. Friedkin. She also testified that she never overheard any comments by Mr. Friedkin about Petitioner’s age or disability, or how either may have affected Petitioner’s work performance. At Petitioner’s request, recorded portions of an unemployment compensation hearing, conducted by an appeals referee from the Florida Department of Economic Opportunity (DEO), were played. Petitioner represented that the purpose was to show that Mr. Friedkin had made several statements during that hearing that were inconsistent with his present testimony. The DEO hearing was to determine whether or not Petitioner was entitled to unemployment compensation benefits. DEO ruled in Petitioner’s favor and found that she was not disqualified from receiving benefits and that no “misconduct” occurred on the job as a result of the Yom Kippur meal incident.5/ The undersigned finds that Mr. Friedkin did not make any materially inconsistent statements during the DEO hearing bearing upon his credibility as a witnesses in this case. There was insufficient proof offered by Petitioner to show that Respondent’s proffered explanation for her termination (poor work performance) was not true, or was only a pretext for discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent’s favor. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S Robert L. Kilbride 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 27th day of January, 2016.
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
