The Issue The threshold issue in this case is whether Petitioner knowingly and voluntarily waived all claims, including claims for employment discrimination, against Respondent, his former employer. If he did not, then the question is whether Respondent unlawfully discriminated against Petitioner on the basis of his alleged disability when it terminated his employment.
Findings Of Fact A. Background Facts Petitioner Waldemar Casanova ("Casanova") is a high school graduate who has completed four years of college level courses in the field of business administration. As of the final hearing, he had worked in the airline industry for more than 30 years. In 1987, Casanova began working for Respondent Worldwide Flight Services ("Worldwide"), a ground handling services organization that specializes in, among other things, providing customized cargo, ramp, passenger, and technical services to various passenger and cargo airlines. Casanova was stationed in New York City for about 12 years, providing services to Worldwide's client, American Airlines, at the John Kennedy and LaGuardia Airports. In 1999, Casanova transferred to Florida, where he continued to work in furtherance of a contract between Worldwide and American Airlines to provide passenger services at the Fort Lauderdale Airport. Casanova initially was assigned to work as a Ramp Supervisor, in which position he was responsible for overseeing passenger baggage services. Thereafter, in the spring of 2002, Casanova was assigned to work as a Cabin Services Supervisor, in which position he was responsible for overseeing the cleaning and servicing of aircraft.1 Facts Relating to Casanova's Hernia Surgery In June 2002, Casanova underwent hernia surgery. He took a leave of absence from work to recover. A couple of months later, Casanova's doctor certified that Casanova could return to "light" work duties on September 3, 2002. The doctor's certificate specified that, upon his return to work, Casanova should not lift more than 10 pounds. To accommodate this restriction, when Casanova returned to work in September 2002, Worldwide reassigned him, temporarily, to its administrative office, where Casanova was responsible for reviewing attendance records. Cancellation of the Contract Between American Airlines and Worldwide and the Consequences Thereof On Casanova's Employment with Worldwide. Effective September 15, 2002, American Airlines canceled its ramp-handling/cabin services contract with Worldwide at the Fort Lauderdale Airport. As a result, Worldwide laid off approximately 33 employees in September and October 2002, including Casanova and five or six other supervisors who, like Casanova, were employed in connection with the American Airlines contract. By letter dated September 18, 2002, Worldwide informed Casanova that he was being laid off. In that letter, Worldwide offered Casanova a lump sum severance payment equaling 13 weeks of pay at his base salary in exchange for, and subject to, Casanova's execution of a Severance Agreement and General Release ("Agreement"). The Agreement was enclosed with the September 18, 2002 letter. The release contained in the Agreement provided, in pertinent part: I agree . . . to release Worldwide . . . from any and all claims for relief of any kind, whether known to me or unknown, which in any way arise out of or relate to my employment or the termination of my employment at Worldwide Flight Services, concerning events occurring at any time up to the date of this Agreement, including, but not limited to, any and all claims of discrimination of any kind. This settlement and waiver includes all such claims, whether under any applicable federal law, including but not limited to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Equal Pay Act and Employee Retirement Income Security Act, Older Worker Benefit Protection Act, or under any applicable state or local laws I further agree not to file a claim or suit of any kind against Worldwide Flight Services et al. . . . I further agree not to bring, continue, or maintain any legal proceedings of any nature whatsoever against Worldwide Flight Services et al. before any court, administrative agency, arbitrator or any other tribunal or forum by reason of any such claims, demands, liabilities and/or causes of action, arising out of, relating to or resulting from my employment or termination from employment . . . . In the September 18, 2002, letter, Worldwide also advised Casanova that the decision whether to accept the terms and conditions of the Agreement was completely voluntary, that he should consult with an attorney of his choice before signing the Agreement, and that he could take up to 45 days to consider the Agreement. In addition, Worldwide advised Casanova that, if he had any questions concerning his separation package, he could consult either with Alvin Brown, a human resources representative at Worldwide's corporate headquarters, or Barry Simpson, then General Manager at Worldwide's Fort Lauderdale station. Casanova signed and dated the Agreement on October 2, 2002.2 He then returned the instrument to Worldwide, where Barry Simpson executed the Agreement on the company's behalf, also on October 2. By the terms of the Agreement, Casanova was afforded a period of up to seven days after execution of the Agreement to revoke the acceptance of its terms. At no time during the seven-day revocation period did Casanova notify Worldwide that he wanted to revoke his acceptance of the Agreement. After the expiration of the seven-day revocation period, and in accordance with the terms of the Agreement, Casanova received a lump sum payment of $8,091.20 by check dated October 26, 2002, which sum constituted 13 weeks of severance at Casanova's base salary.3 Since his receipt of this payment, Casanova has neither tendered back nor attempted to tender back the severance payment to Worldwide. At hearing, Casanova admitted that he had understood fully the language and effect of the Agreement, including the release of all claims, and that he knowingly and voluntarily had accepted the terms of the Agreement as well as the benefits provided to him thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing with prejudice Casanova's Petition for Relief because, for valuable consideration, Casanova knowingly and voluntarily released Worldwide of and from any claims arising out of his employment with Worldwide. Alternatively, the final order should declare that Worldwide is not liable to Casanova because (a) he is not a handicapped individual and (b) even if he were a handicapped individual, Worldwide has articulated a legitimate, non-discriminatory reason for Casanova's discharge, which Casanova failed to prove was a pretext for discrimination. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005.
The Issue Whether Respondent, McDonald's Corporation, discriminated against Petitioner, Carolyn Hadley, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2000).
Findings Of Fact Petitioner is an African-American female who worked at the Cocoa Beach, Florida, McDonald's restaurant from October 1, 2000, until March 17, 2001. She voluntarily terminated her employment. Respondent owns and operates restaurants and is subject to Chapter 760, Florida Statutes (2000). Respondent has an extensive, well-conceived, "Zero Tolerance" policy which prohibits unlawful discrimination. This policy is posted in the workplace, is distributed to every employee at the time he or she is employed, and is vigorously enforced by management. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Petitioner did not avail herself of Respondent's "Zero Tolerance" policy. Petitioner complains of two isolated instances of what the evidence clearly shows to be workplace "horseplay" as the basis of her unlawful employment discrimination claim. On one occasion, a shift manager placed a promotional sticker on Petitioner's forehead. The second involved ice cream being placed on Petitioner's face. The evidence reveals that the "horseplay" complained of was typical of this workplace and not race or sex based. Practical jokes, food fights, ice down shirt backs, and similar activities, while not encouraged by corporate management, were a part of the routine at this restaurant. Petitioner was not the singular focus of the "horseplay"; it involved all employees. There is no evidentiary basis for alleging that it was racial or sexual in nature, as it involved employees of differing races and sexes. Approximately a month after the latest of the incidents complained of, on March 17, 2001, Petitioner voluntarily terminated her employment. Six months later, in September, 2001, Petitioner complained to Dexter Lewis, an African-American corporate employee who is responsible for investigating claims of unlawful workplace discrimination, about the two incidents. She claimed that she had been embarrassed by the incidents but did not suggest to him that they had been racially or sexually motivated. Mr. Lewis investigated the alleged incidents; he confirmed that the incidents had occurred and that similar incidents were widespread, but not racially or sexually motivated; he reprimanded the store manager and shift manager for their unprofessional management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of September, 2004. COPIES FURNISHED: Carolyn Hadley 135 Minna Lane Merritt Island, Florida 32953 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia Brennan Ryan, Esquire Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 16th day of April, 2015.
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of national origin in violation of the Florida Civil Rights Act of 1992, as amended.1/
Findings Of Fact Mr. Charlot is a Black male of Haitian descent. Mr. Charlot was employed by the County in the Department for almost 16 years before he was terminated in December 2008. The Department operates Miami International Airport (Airport). At the time of his termination and all times material hereto, Mr. Charlot's classification was an Airport Automotive Equipment Operator II, operating heavy machinery in maintenance work at the Airport. At all times material hereto, the majority of the Department's employees were Hispanic, including the supervisors. Mr. Charlot's Dismissal before the Aviation Director By letter dated December 12, 2008, the Aviation Director, José Abreu, dismissed Mr. Charlot from employment with the Department and the County, effective the close of business on December 4, 2008, upholding the "recommendation by management" for dismissal. Mr. Abreu indicated, among other things, that, in upholding the recommendation, he considered the Disciplinary Action Report (DAR) and Mr. Charlot's work history. Furthermore, Mr. Abreu indicated, among other things, that his decision on termination was based in part upon Mr. Charlot's violations of the County's Personnel Rules, Chapter VIII, Section 7, Paragraphs (I), (R), and (BB), related to Mr. Charlot's arrest on grand theft charges; and that the basis for his (Mr. Abreu's) final decision was based upon Mr. Charlot's disregard for County Personnel Rules. Additionally, Mr. Abreu indicated that, because Mr. Charlot failed to attend the meeting at which Mr. Charlot would have been able to appeal management's recommendation, he (Mr. Abreu) had no additional factors to consider in making his decision. Consequently, Mr. Charlot was dismissed from employment with the Department and the County, effective close of business on December 4, 2008. The DAR dated September 25, 2008, was considered by Mr. Abreu. The DAR notified Mr. Charlot that he was charged with violating the County's Personnel Rules, Chapter VIII, Section 7, Paragraphs (I), (R), and (BB), which provides: (I) that the employee has been guilty of conduct unbecoming an employee of the County whether on or off duty, provided allegations shall be specific and shall describe the conduct which is the basis of the charge; (R) that the employee has misappropriated County funds, appropriated County property for personal use, or illegally disposed of County property; and (BB) that the employee has violated any of the provisions of the Act or the Rules. The DAR dated September 25, 2008, set forth revised facts. Those revised facts state that, on September 24, 2008, Mr. Charlot was re-arrested, arraigned, and formally charged with a third degree felony for theft of County property based upon an incident occurring on August 5, 2008; and that, also, as a result of the formal charge, the County automatically placed Mr. Charlot on suspension without pay. Additionally, the revised facts recite facts stated in a DAR dated August 6, 2008, issued as a result of the incident occurring on August 5, 2008, which cited the same violations of the County's Personnel Rules. In essence, the DAR facts state that, on August 5, 2008, Mr. Charlot was on an overtime assignment, from 11:00 p.m. through 7:00 a.m., repairing asphalt; that his duty was to operate the scrubber/sweeper, sweeping around the site prior to the asphalt being placed; that, at approximately 3:00 a.m., Mr. Charlot advised Kendall Davis that he would return and left the worksite; that, shortly thereafter and according to an Airfield Security Incident Report, a law enforcement officer observed Mr. Charlot on Airport property, not at the worksite, with two bags of copper wire, weighing approximately 140 pounds; that Mr. Charlot left the worksite and was found committing a crime against the County by stealing County material; that Mr. Charlot was in an area in which he was not authorized and found in a vehicle no longer in service and not able to be driven; and that the DAR was warranted because of Mr. Charlot's actions of taking County material, leaving the worksite and not performing his assigned duties while on County time. Further, the facts in the DAR dated September 25, 2008, stated that Mr. Charlot was arrested on May 11, 2006, for petty theft, but had failed to advise the Aviation Director or anyone in the chain of command about the arrest. Also, the facts stated that his failure to so advise of the arrest was a violation of Department's Rules which placed an obligation on County employees to notify their Department Director or his/her designee of an arrest, whether on or off duty, within a reasonable amount of time, not to exceed three calendar days, of the arrest. A copy of the Department's policy regarding arrests was included with the DAR. Additionally, a copy of the disposition of the charge was included with the DAR, which showed that Mr. Charlot was not prosecuted. The DAR dated September 25, 2008, concluded that the DAR was warranted based on Mr. Charlot's actions of taking County material, being formally charged with a third degree felony, leaving the worksite, not performing his assigned task while on duty, and failing to report a prior arrest to the Department. Mr. Charlot's responded to the DAR dated August 6, 2008, and his response was also included with the DAR dated September 25, 2008. The response stated, among other things, that the State Attorney's Office had decided that the evidence was insufficient to charge Mr. Charlot with committing a crime and took no action on the charge; that Mr. Charlot was on his lunch break, with his identification, and it was not uncommon for employees to take a lunch break away from the worksite; and that Mr. Charlot advised Mr. Davis that he (Mr. Charlot) was taking his lunch break and would return. Also, the response included affidavits from several employees stating that it was normal for employees to take lunch breaks away from the worksite and attesting to Mr. Charlot's performance as an employee and to his character. Mr. Charlot's Appeal of the Termination through Arbitration Having been terminated from his employment by Mr. Abreu, Mr. Charlot appealed the termination through arbitration. On September 29, 2009, the appeal was heard by a Hearing Examiner of the American Arbitration Association. The Hearing Examiner issued a written recommendation on November 22, 2009. The Hearing Examiner's recommendation was to sustain Mr. Charlot's dismissal. Mr. Charlot's Dismissal before the County Manager After arbitration, the Hearing Examiner's recommendation was considered by the County Manager. By letter dated December 3, 2009, the County Manager sustained and confirmed Mr. Charlot's dismissal from employment with the County. The Incident on August 6, 2008 Mr. Charlot was arrested and charged with burglary on August 6, 2008. He obtained counsel. The State Attorney's Office decided to nolle prose, and the charge against Mr. Charlot was dismissed. He returned to work. However, subsequently, in September 2008, Mr. Charlot was re-arrested and arraigned on a third degree felony count of grand theft regarding the incident on August 6, 2008. On September 24, 2008, the State Attorney's Office filed an information charging Mr. Charlot with the third degree felony count of grand theft. The evidence is insufficient to demonstrate that the County played a part in or influenced the action by the State Attorney's Office to re-arrest Mr. Charlot, arraign him on a different crime, and file an information against him on the different crime. By letter dated September 25, 2008, Mr. Abreu advised Mr. Charlot, among other things, that he was suspended indefinitely in accordance with the "Code of Miami-Dade County, Section 2-42, Paragraph (22), which provides: 'For the automatic suspension of any person from the County service immediately upon being indicted by any grand jury or upon having an information filed against him by any prosecuting official, such suspension to continue until any such indictment or information shall have been disposed of by a trial and conviction or acquittal of the accused or by any dismissal or quashing or reversal of the same.'" The letter further advised Mr. Charlot that, if the charges were reduced or dropped, it was his (Mr. Charlot's) responsibility to immediately advise Human Resources; and that, even if the charges were reduced or dropped, the Department may still pursue any administrative action deemed necessary. The evidence demonstrates that Mr. Charlot's immediate suspension was in accordance with the County's Code. Mr. Charlot was unable to afford the continuation of representation by counsel. He entered into a plea agreement, and the charge was nolle prossed.2/ Prior Disciplinary Action Against Mr. Charlot In October 2004, Mr. Charlot was suspended for three days for an incident that occurred on July 2, 2004. He served the three-day suspension from October 13 through 15, 2004. Mr. Charlot received a DAR in July 2004 for the incident, which stated, among other things, that his minor child was with him on a sweeper during his work hours. Also, the DAR indicated previous disciplinary action taken against Mr. Charlot in November 2003 and December 2002, resulting in a five-day suspension and a three-day suspension, respectively; and indicated that the County would not tolerate continuous violation of its rules. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incident on July 2, 2004, was unreasonable or discriminatory. In November 2003, Mr. Charlot received a five-day suspension for an incident that occurred on October 11, 2003. He served the five-day suspension from November 18 through 22, 2003. Mr. Charlot received a DAR on October 14, 2003, which stated, among other things, that he failed to report to work during his scheduled work shift hours and failed to notify his supervisor that he would not be reporting to work. Also, the DAR indicated previous disciplinary action taken against Mr. Charlot for leaving work prior to the scheduled end of his shift, without swiping out of his shift, resulting in a three-day suspension. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incident on October 11, 2003, was unreasonable or discriminatory. In December 2002, Mr. Charlot received a three-day suspension for an incident that occurred on November 26, 2002. He served the three-day suspension from January 15 through 17, 2003. Mr. Charlot received a DAR on December 2, 2002, which stated, among other things, that he left the worksite in his personal vehicle during his regularly scheduled shift hours, without swiping out and without notifying his supervisor. In a memorandum dated December 30, 2002, the Assistant Aviation Director, among other things, advised Mr. Charlot of the suspension and further advised Mr. Charlot that, should he need to leave the worksite to respond to personal matters, he was required to swipe out and to ensure that his supervisor was notified. As to the incident on November 26, 2002, at hearing Mr. Charlot testified that school personnel at the school that his child was attending contacted him regarding his child experiencing a diabetic episode; and that he immediately departed the worksite for the school to give his child an insulin injection. His testimony is credible. Further, no evidence was presented to indicate that the County failed to consider his explanation at the time of the disciplinary action. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incident on November 26, 2002, was unreasonable or discriminatory. In July 1998, Mr. Charlot received a written reprimand for various incidents occurring in May 1998. He received a DAR on May 26, 1998, regarding the incidents. The written reprimand indicated, among other things, that Mr. Charlot engaged in insubordinate behavior and took an unauthorized break. Additionally, the written reprimand advised him that further such incidents would result in progressive disciplinary action up to and including termination. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incidents in May 1998, was unreasonable or discriminatory. Alleged Employees Similarly-Situated to Mr. Charlot Mr. Charlot asserts that there are other Department employees who are similarly-situated to him and who are Hispanic. The other employees are Robert Chacon, Rodolfo deArmas, and Ricardo Mendez. No dispute exists that all of the other employees are Hispanic. Robert Chacon Robert Chacon was employed with the Department for approximately 20 years. Since 2008, he has been an Airport Maintenance Mechanic. The evidence demonstrates, among other things, that, in 2009, Mr. Chacon was suspended due to an incident not associated with the Department and which occurred outside of the workplace; that in 2001, he was issued a DAR, which he grieved, but lost; that he was a supervisor, but was demoted and is no longer a supervisor; and that he has been suspended four times. The evidence fails to demonstrate the details of or the circumstances of the suspensions, the DAR, or the demotion. Furthermore, the evidence demonstrates that Mr. Chacon has not been charged with stealing from the Department. Rodolfo deArmas Rodolfo deArmas has been employed with the Department since 1984. He has been an Equipment Operator II for more than 15 years. The evidence demonstrates that, in 1991, Mr. deArmas was charged with a criminal offense which was not associated with the Department and for which he was not convicted; and that he has been subject to two disciplinary actions. The evidence fails to demonstrate the details of or the circumstances of the criminal offense or the disciplinary actions. Ricardo Mendez Regarding Ricardo Mendez, the evidence demonstrates that the Department charged Mr. Mendez with violating the County's Personnel Rules and that one of the Rules was the same one Mr. Charlot was charged with violating, i.e., Personnel Rules, Chapter VIII, Section 7, Paragraph (R); and that Mr. Mendez was dismissed and terminated in 200l for the violation. Among the alleged facts associated with Mr. Mendez's violation of Personnel Rules, Chapter VIII, Section 7, Paragraph (R) were that Mr. Mendez submitted more hours of work than he had actually worked and was paid for more hours than he had actually worked. Furthermore, the evidence demonstrates Mr. Mendez appealed his termination through arbitration, as did Mr. Charlot. However, the evidence demonstrates that, unlike in Mr. Charlot's situation, a hearing examiner found facts favorable to Mr. Mendez and recommended reinstatement of Mr. Mendez. The County reinstated Mr. Mendez.
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 discrimination complaint of Venis Charlot. S DONE AND ENTERED this 26th day of April, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2012.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his race.
Findings Of Fact In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors. Initially, Respondent paid Petitioner $7.25 per hour. Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent. Respondent eventually raised Petitioner's salary to $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises. Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed Ms. Collett that Petitioner had not come home with his pay check. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room. Petitioner could not find another job. He is now in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of May, 2009, 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 27th day of May, 2009. COPIES FURNISHED: Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465 Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 1326 South Ridgewood Avenue Suite 8 Daytona Beach, Florida 32114 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 issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue This is a case in which the Petitioner alleges that the Respondent has engaged in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by engaging in the following activities: (a) Discharging the Petitioner from her position of employment with Respondent because of Petitioner's race and (b) after discharging the Petitioner, continuing to seek applications for the position previously held by the Petitioner from similarly qualified or less qualified applicants. Subsequent to the filing of her petition for relief, the Petitioner filed a motion for default pursuant to Rule 22T- 9.008(5)(d), Florida Administrative Code, based upon the Respondent's failure to file an answer to the petition as required by the cited rule. By order dated September 21, 1987, the Respondent was given until October 5, 1987, within which to show cause as to why the relief requested in the motion for default should not be granted. The Respondent failed to respond to the order of September 21, 1987, and on October 7, 1987, an order was issued which included the following language: That pursuant to Rule 22T-9.008(5)(d), Florida Administrative Code, the Respondent is hereby deemed to have admitted all material facts alleged in the petition. That at the final hearing in this case the material facts alleged in the petition will be taken as established without further proof, but both parties will be afforded an opportunity at the final hearing to offer evidence regarding any additional relevant facts. On the day scheduled for the hearing, the Petitioner and her attorney appeared at the time and place set forth in the Notice of Hearing, but there was no appearance on behalf of the Respondent. Approximately 45 minutes after the scheduled commencement time, the Hearing Officer called the Respondent's offices in Jacksonville and was advised by an employee of Respondent that the Respondent did not intend to have anyone attend the hearing. Shortly thereafter the hearing was convened and the Hearing Officer received evidence offered by the Petitioner. At the conclusion of the presentation of evidence by the Petitioner, the Petitioner requested, and was granted, 15 days within which to file a proposed recommended order. Thereupon the record of the hearing was closed without any appearance having been made on behalf of the Respondent. On November 16, 1987, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order. Following the hearing, the Respondent was advised by letter of its right to file a proposed recommended order, but as of the date of this recommended order the Respondent has not filed any post-hearing document with the Hearing Officer.
Findings Of Fact On October 11, 1985, the Petitioner was referred by Job Finders of Florida, a private job placement service, to apply for a position with the Respondent, Handling Systems Engineering, Inc. The job the Petitioner applied for was Secretary/Dispatcher. The Petitioner met all of the qualifications for the job of Secretary/Dispatcher. The Petitioner was interviewed by Mr. Jim Hart, the manager of the Ocala office of the Respondent. After interviewing the Petitioner, Mr. Hart decided, on the basis of her experience and references, that the Petitioner was the best qualified of several applicants. In this regard, it is noted that the Petitioner's prior employment had required the performance of duties substantially similar to those of the Secretary/Dispatcher position with Respondent. Thereafter, in the afternoon or evening of October 11, 1985, Mr. Hart telephoned the Petitioner, offered her the job, and advised her that she was to report to work on October 14, 1985. On October 14, 1985, the Petitioner reported to work at the Ocala office of the Respondent and immediately began performing the duties of Secretary/Dispatcher. During the work day on October 14, 1985, the Petitioner received a telephone call from Mrs. Lou Mohrman, the managing director of the Respondent. Mrs. Lou Mohrman welcomed the Petitioner to her position of employment and stated that she was pleased with the Petitioner's placement with the company. On October 15, 1985, Mr. L. D. Mohrman, president of Respondent, accompanied by Mrs. Lou Mohrman, managing director, visited the Ocala offices of the Respondent. After engaging in a boisterous conversation with Mr. Hart and visually ascertaining the Petitioner's race, Mrs. Mohrman summarily dismissed Petitioner without articulating a legitimate business reason for the termination. Within the next few days the Respondent listed the Secretary/Dispatcher position as vacant and continued to seek to fill the position with individuals with qualifications similar to or less than the qualifications of the Petitioner. The Petitioner is a black female. She is a person within the meaning of Sections 760.02(5) and 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. The dismissal of the Petitioner from her position of employment with the Respondent was motivated by the president and the managing director ascertaining the Petitioner's race. The dismissal of the Petitioner was motivated solely by her race. The Petitioner's starting salary at the Respondent company was $4.50 per hour for a 40-hour work week. After her termination, the Petitioner sought employment elsewhere and obtained another job in January of 1986, where she worked until November of 1986. In November of 1986 the Petitioner voluntarily left her job in order to finish school. When she began work in January of 1986 the Petitioner was making $3.80 per hour. When she quit in November of 1986 she was making $4.00 per hour.
Recommendation Based on all of the foregoing, it is recommended that the Florida Commission on Human Relations issue a final order to the following effect: Concluding that the Respondent has engaged in an unlawful employment practice; Prohibiting the Respondent from terminating any employee on the basis of the employee's race; Requiring the Respondent to offer reinstatement to the Petitioner under the terms and conditions of employment to which she would be presently entitled if she had been continuously employed, including any raises to which she would have been entitled on the basis of longevity. Requiring the Respondent to pay back pay to the Petitioner from the date of termination until November of 1986 in an amount equal to the total amount the Petitioner would have earned as a Secretary/Dispatcher during that period, less any amounts actually earned during that period; and Requiring the Respondent to pay to the Petitioner her reasonable attorney's fees incurred in this case. DONE AND ENTERED this 4th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3048 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraph 1: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraph 2: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraphs 3, 4, 5, 6,7, and 8: Accepted Paragraphs 9, 10, 11, and 12: Not included in findings of fact because they are subordinate procedural details. Paragraphs 13, 14, and 15: Covered in prior findings. Paragraph 16: Accepted Paragraph 17: Covered in prior findings. Findings proposed by Respondent: (None) COPIES FURNISHED: Harry L. Lamb, Jr., Esq. Perry & Lamb, P.A. 312 W. First Street Suite 605 Sanford, Florida 32771 Mr. L. D. Mohrman, President Handling Systems Engineering, Inc. 3000 West 45th Street Jacksonville, Florida 32209 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent, Coastal Properties (“Respondent” or “Coastal Properties”), discriminated against Petitioner, Harry (Hal) Hingson (“Petitioner”), based upon his age and race in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509.092, Florida Statutes.1/
Findings Of Fact Petitioner is a Caucasian male who was 60 years old in May of 2014, when Respondent allegedly discriminated against him by terminating his employment because of his age. Respondent is a management company for third-party owners of apartment communities, home owners associations, and condominium associations. Respondent employed Petitioner as a maintenance worker at the Twin Oaks apartment complex, a 242-unit apartment complex in Tallahassee, Florida. On May 6, 2014, after work, Petitioner and his supervisor, Clint Creel, were involved in a physical altercation off the job site, while fishing together on a boat. After the boat returned to the dock, Petitioner went inside his home. Rather than securing himself in his residence and calling law enforcement, Petitioner retrieved a gun from his residence, exited his residence, and fired the gun multiple times at Mr. Creel. Mr. Creel was struck in the back of the leg by a bullet and received medical treatment for his gunshot wound. Although he was shot, Mr. Creel returned to work the next day. Petitioner did not return to work the day after the incident as he was seeking medical treatment for the injuries he sustained during the physical altercation. Two days after the shooting, Respondent terminated Petitioner's employment. The decision to terminate Petitioner was made by the Respondent's Vice-President, Ray Allen, in consultation with the President, Dennis Fuller, after Mr. Allen spoke to both Mr. Creel, and Petitioner, about the shooting. Respondent presented the undisputed testimony of Mr. Allen and Mr. Ray that Petitioner's employment was terminated to protect the safety of the other employees and the residents at the Twin Oaks property. Mr. Creel expressed concern about his safety to Mr. Allen if he had to continue working with Petitioner. Mr. Allen and Mr. Fuller also were concerned about the safety of Mr. Creel, as well as the other employees and residents, if Petitioner and Mr. Creel continued to work together. Petitioner's Discrimination Complaint alleges that Petitioner was discriminated against based on race and age. In particular, Petitioner alleges that he was discriminated against because he was terminated after the off-the-job altercation, but his younger supervisor was not. The evidence adduced at the final hearing, however, failed to substantiate Petitioner's claim of discrimination. Other than testifying that he at one time, prior to the incident, was told that he was moving slow and at another time was told he was acting feeble, Petitioner did not present any direct or circumstantial evidence sufficient to reasonably suggest that Respondent discriminated against him in employment because of his age. Even if Petitioner had presented evidence sufficient to establish a prima facie case of age discrimination, Respondent provided a legitimate non- discriminatory reason for terminating Petitioner's employment. Petitioner admitted that Mr. Allen advised him that he was being terminated because he no longer wanted Petitioner and Mr. Creel to work together. Petitioner admitted Mr. Allen told him that he would have continued to employ Petitioner by moving him to another property, but there were no other openings. Respondent’s evidence demonstrated that the day after Petitioner was terminated, of its 59 employees, 25 were over the age of 40, 11 were over the age of 50, and one employee was older than Petitioner. The evidence also showed that 54 days after Petitioner was terminated, of Respondent’s 64 employees, 25 were over the age of 40, 10 were over the age of 50, and one employee was older than Petitioner. Petitioner failed to establish Respondent's reason for terminating his employment was a pretext for age discrimination. Petitioner's Discrimination Complaint further alleges he was discriminated against based on his race because another employee, a younger African-American, was arrested for DUI but was not terminated. Petitioner presented no evidence at the final hearing to substantiate that allegation, and Petitioner failed to present any evidence whatsoever to show that Respondent discriminated against Petitioner because of his race. In sum, Petitioner failed to show that Respondent discriminated against Petitioner by treating him differently, or terminating his employment because of his race or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2015.
The Issue Whether the Florida Commission on Human Relations (FCHR) correctly determined that it lacks subject matter jurisdiction over Petitioner’s claim of unlawful employment discrimination because the complaint was received more than 365 days after the date of the alleged violation?
Findings Of Fact AAR Corp. (AAR) is an aviation support company which provides maintenance, repair, and overhaul services to air carriers at various facilities through the United States. AAR uses its own employees in addition to utilizing employees from its temporary staffing company, AMS. When AAR’s business increases, it increases its workforce by adding workers from AMS. When AAR experiences a downturn in business, it similarly reduces its workforce, typically, by reducing workers from AMS through layoffs. Business is usually slow for AAR and AMS during the peak airline travel times, including summer and the winter holidays. Business of AAR and AMS is also affected by AAR's contracts with major airline carriers for scheduled and non-scheduled maintenance to aircraft. Magri was hired by AMS on October 27, 2011, as a Sheet Metal mechanic at the AAR Miami International Airport facility. She began work January 16, 2012, and at all times material hereto, worked as an Interior Mechanic for AMS. Magri's last day physically working for AMS was October 10, 2013. In 2013, Pedro Estrada (Estrada) became Magri's immediate supervisor. According to Magri, Estrada frequently subjected Magri to sexual jokes, graphic comments about her body, and requests for sexual favors.2/ At the end of September or beginning of October 2013, Estrada came up behind Magri and placed his penis against her buttocks in a sexual manner. Shortly after making a sexual harassment complaint about her supervisor in September 2013, Magri was given a disciplinary memo for poor performance on October 4, 2013. Although there is no prior record of written discipline against Magri, this memo notified her that this was a "final warning" and any future violations could result in termination. On October 10, 2013, Magri was sent home by her then immediate supervisor, Plamen Ilonov (Ilonov), Manager of Interior, allegedly due to a lack of work. Approximately eight other AMS workers were laid off for the same reason on that date. AMS employees were aware of a likely work slowdown at that time because US Airways cancelled its contract with AAR in the fall of 2013 due to US Airways impending merger with American Airlines. However, neither Magri, nor her co-workers, were told by Human Resources or their supervisors, the anticipated duration of the layoff. In fact, it was common practice for AMS employees to be laid off and then returned to work within a week to a month due to the workflow fluctuations. This happened to Magri for a month in 2012. Laid off employees, including Magri, were directed to regularly call or text their supervisor to see when work was available. AMS had no system of notifying employees whether a layoff would be long or short term. When a layoff was anticipated to be long term, the AMS worker was removed from the Human Resources payroll system and internal paperwork was generated indicating termination, however, the employee was not notified of their status other than "lay off." At the time of an anticipated long-term layoff, the AMS Human Resources Department also deactivated the worker's security badge that would provide access to the facility. However, the employee was not asked to return the badge, nor was the employee advised that the badge was inactive. When she was sent home on October 10, Magri was instructed by Ilonov to check with him regarding when she might be returned to the work schedule. At this time she was not aware a decision was made that she would likely be laid off more than a month. For the next two weeks, Magri called and sent text messages to Ilonov looking for clarification as to when she might be returned to work. Magri sent a text message to Ilonov on October 11 asking "Why me." Ilonov responded that 10 people were affected, not just Magri. Magri asked, "Plamen do you think its [sic] layoff will take long time?" On October 12, after receiving no response, Magri texted Ilonov, "Good morning, Plamen, do you think I have to take out my tool box?" Ilonov replied, "Good morning, it is possible. I don't see much next 2-3 months." In a telephone conversation this same week, Ilonov indicated to Magri that work might be available October 21 if United Airlines planes arrived for service. Based on this, Magri had a legitimate expectation that she would be returned to the schedule. On October 20, Magri sent a text to Ilonov stating, "Do you don't [sic] know how long? I'm very scared without work." Ilonov did not reply. During this week, several employees were called to return to work. Ilonov did not return Magri to work because he only called back those he considered his "best" workers. On October 24, Magri sent several text messages to Ilonov seeking an explanation of when she might return to work or why she wasn't called back. Ilonov responded that he was calling whoever he thought he needed, and "We are really slowing down, and soon more changes." On October 25, Magri went to the facility to speak directly with Ilonov. During this meeting he made it clear to Magri for the first time that it was not his decision whether to put her back on the schedule, and that he did not think the "higher ups" wanted her to return. He told her he could not tell her anything further and that she would need to contact the Maintenance Manager, Luiz Gonzalez (Gonzalez). This was the first time Magri realized that this would not be a short-term layoff. At some point shortly thereafter, Magri spoke to Gonzalez by telephone, who told her she needed to look for alternative employment. Respondent maintains two conflicting factual assertions. Respondent contends the decision to terminate Magri's employment was made on October 10, 2013, as evidenced by its internal removal of Magri from the payroll system and the deactivation of her employee security badge (neither of which Magri was aware). Alternatively, Respondent claims there was no decision to terminate Magri and that she remains eligible for rehire. Regardless of whether Magri's separation from employment was a termination or long-term layoff, the earliest Magri knew or should have known that she suffered adverse action was October 24, 2013, when she became aware that although some of her co-workers were being immediately called back to work, she was not. Accordingly, Magri's charge, filed on October 16, 2014, which is 357 days from the alleged violation, was timely with regard to her claim of sex discrimination and retaliation arising from her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations decline jurisdiction of Petitioner's charge of sexual harassment, which allegedly occurred prior to October 10, 2013, and take jurisdiction of Petitioner's charge of sex discrimination and retaliation arising from her separation from employment on October 24, 2013. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2016.
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- American male.
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 Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010.
