The Issue Whether Respondent committed an unfair labor practice by discriminating against Petitioner on the basis of race and retaliating against Petitioner, in violation of the Florida Civil Rights Act, of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).
Findings Of Fact On September 28, 2005, Respondent AirTran Airways hired Petitioner, who is Black, as a customer service agent. During her entire term of employment, Petitioner was assigned to Respondent's station in Fort Lauderdale, Florida. Between January and June of 2006, Petitioner was issued five attendance warnings. During the same period, Petitioner was issued two written warnings that related to other violations of company policy.2 Nevertheless, on August 6, 2007, Petitioner was promoted to the position of station supervisor. Several months after her promotion, Petitioner was issued a "final warning" and suspended for three days. This occurred after an internal fraud investigation revealed that on several occasions, Petitioner received insufficient funds from customers in connection with round-trip and business class upgrades. Following the "final warning," Petitioner's employment was uneventful until February or March of 2008. At that point, Dan Mellgren, who had been employed with Respondent for approximately eight years, transferred to Fort Lauderdale from Chicago and assumed the position of station manager. Petitioner's claims of racial discrimination and retaliation relate solely to Mr. Mellgren. As explained during the final hearing, a station supervisor, the position held by Petitioner, is subordinate to one or more duty managers. In turn, duty managers report to the station manager, and the station manager reports to the director of the southern region. Mr. Mellgren admits that upon taking over as the Fort Lauderdale station manager, he made the decision that "swipe cards," which were limited in number (four or five) and permitted parking in a preferred lot closer to the terminal, would be distributed based on seniority. In addition, one swipe card was reserved for a supervisor who frequently ran work- related errands. As a result of Mr. Mellgren's change in policy, Petitioner lost her swipe card and was thereafter required to park in the regular employee lot. Although Petitioner claims that the reassignment of swipe cards was racially motivated, there is no credible evidence supporting the allegation. According to Petitioner, Mr. Mellgren committed other discriminatory acts. For example, Petitioner claims that she was not permitted to bring her children to the weekly staff meetings (which took place on her day off), while at least one white employee was permitted to do so. In contrast, Mr. Mellgren testified that all employees, including Petitioner, were authorized to bring well-behaved children to a staff meeting if said meeting occurred on the employee's day off. Mr. Mellgren further testified that at no time did he prevent Petitioner from bringing her children to a staff meeting. The undersigned accepts Mr. Mellgren's testimony as credible with respect to this issue. As an additional allegation of discriminatory conduct, Petitioner claims that Mr. Mellgren required her, on one occasion, to work eight hours without a lunch break. While Mr. Mellgren did not deny that this occurred, he explained that in the airline industry, customer service agents and supervisors will occasionally miss lunch breaks during peak hours. Any such missed lunch break is recorded in an "exception log," which enables the employee to obtain additional compensation. The undersigned accepts Mr. Mellgren's explanation concerning the incident and concludes that any deprivation of a lunch break was due solely to busy conditions at the airport. Petitioner further alleges that shortly after Mr. Mellgren's transfer to Fort Lauderdale, Mr. Mellgren forged her name on a security badge sign-out form. Mr. Mellgren testified, credibly, that this did not occur. Pursuant to AirTran Airways policy, which is outlined in the "AirTran Crew Member Handbook," an employee who is experiencing harassment based upon race or other protected classification is directed to handle the situation by first confronting the harasser politely. If the harassment continues, or if the aggrieved employee believes that a confrontation could result in harm, the employee should contact a supervisor or manager. If the complaint involves the employee's supervisor or manager, the employee is directed to take the complaint to the next level of management or to the human resources department. Petitioner admits that she did not report her issues with Mr. Mellgren to AirTran's human resources department or to a level of management superior to Mr. Mellgren. Petitioner did, however, report at least some of her problems with Mr. Mellgren to Everton Harris, a duty manager whom Petitioner trusted.3 There is no evidence that Mr. Harris communicated Petitioner's concerns to the human resources department, a superior, or anyone else. It is undisputed that on March 27, 2008, Petitioner arrived at the Fort Lauderdale station after attending training in Atlanta. Petitioner noticed that one of the gates was busy, so she decided to assist two AirTran customer service agents (Eduardo Baez and Donna Heghinian) who were working the counter. Shortly thereafter, in violation of AirTran policy, a revenue passenger (i.e., a paying customer) was bumped from a flight to accommodate a non-revenue flight attendant employed with Spirit Airlines. In the following days, AirTran's Internal Audit and Fraud Department investigated the incident to determine the identity of the employee responsible for replacing the revenue customer with the non-revenue flight attendant. During the investigation, statements were obtained from Mr. Baez and Ms. Heghinian, both of whom implicated Petitioner as the responsible party. Petitioner also provided a statement in which she vehemently denied responsibility. The findings of the investigation were subsequently provided to Ms. Kellye Terrell, an Employee Relations Manager with AirTran. Ms. Terrell is African-American. After reviewing the findings, Ms. Terrell determined that Petitioner should be separated from her employment with AirTran due to two violations of company policy.4 Ms. Terrell drafted a termination letter, which was provided to Petitioner on April 7, 2008. Although the termination letter was actually signed by Mr. Mellgren, it should be noted that Mr. Mellgren did not participate in the decision to terminate Petitioner. In addition, Mr. Harris, the only person to whom Petitioner communicated any of her complaints regarding Mr. Mellgren, did not participate in Petitioner's termination. At the time of Petitioner's termination, neither Ms. Terrell, nor any other decision-maker was aware of any complaints made by Petitioner to Mr. Harris concerning Mr. Mellgren. The undersigned finds that Respondent's decision to terminate Petitioner was based upon a good faith belief that Petitioner violated company policy by bumping a revenue passenger, as well as Petitioner's previous disciplinary history. Petitioner offered unrebutted testimony that her position was filled by a Caucasian female.5 The undersigned determines, as a matter of ultimate fact, that the evidence in this case is insufficient to establish that Respondent discriminated against Petitioner on the basis of her race. The undersigned also finds, as a matter of ultimate fact, that the evidence is insufficient to establish that Respondent retaliated against Petitioner.
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. DONE AND ENTERED this 18th day of August, 2010, in Tallahassee, Leon County, Florida. Edward T. Bauer 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 18th day of August, 2010.
The Issue Whether Petitioner's Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed against Respondent should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Marriott Forum at Deercreek (hereinafter referred to as the "Facility"), a "senior living community, nursing home." Petitioner was employed as a Certified Nursing Assistant (hereinafter referred to as "CNA") at the Facility from 1992 or 1993, until July of 1998, when she was terminated. Petitioner is black. At the time of Petitioner's termination, all of the CNAs, and all but one of the nurses, at the Facility were black. At the time of Petitioner's termination, the chain of command leading down to Petitioner was as follows: the General Manager, Joanna Littlefield; the Health Care Administrator, Sheila Wiggins, and the Interim Director of Nursing, Michelle Borland. The Director of Human Resources was Meg McKaon. Ms. Littlefield had the ultimate authority to terminate employees working at the Facility. Ms. Wiggins, Ms. Borland, and Ms. McKaon had the authority to make termination recommendations to Ms. Littlefield, but not to take such action themselves. In July of 1998, F. S., an elderly woman in, or approaching, her 90's, was a resident at the Facility. On or about July 9, 1998, Petitioner was involved in a scuffle with F. S. while giving F. S. a shower. Joyce Montero, a social worker at the Facility, was nearby in the hallway and heard the "commotion." When F. S. came out of the shower, Ms. Montero spoke to her. F. S. appeared to be "very upset." She was screaming to Ms. Montero, "Get her away from me; she hit me," referring to Petitioner. Ms. Montero noticed that F. S. "had blood [streaming] from her nostril to at least the top of her lip." The nursing staff then "took over" and "cleaned up [F. S.'s] blood" with a towel. Ms. McKaon was contacted and informed that there was a CNA who had "had an altercation with a resident." Ms. McKaon went to the scene "right away" to investigate. When Ms. McKaon arrived, F. S. was still "visibly shaken and upset." Ms. McKaon saw the "bloody towel" that had been used to clean F. S.'s face "there next to [F. S.]." F. S. told Ms. McKaon that she was "afraid [of Petitioner] and that she [had been] punched in the nose" by Petitioner. In accordance with Facility policy, Petitioner was suspended for three days pending the completion of an investigation of F. S.'s allegation that Petitioner had "punched" her. Ms. Wiggins and Ms. McKaon presented Petitioner with a written notice of her suspension, which read as follows: Description of employee's behavior . . . . On July 9, 1998, one of our residents [F. S.] was being given a shower by [Petitioner]. [F. S.] stated that [Petitioner] punched her in the nose. (She was crying and bleeding: witnessed by Joyce Montero). Suspension For Investigation To provide time for a thorough investigation of all the facts before a final determination is made, you are being suspended for a period of 3 days. Guarantee Of Fair Treatment Acknowledgement I understand that my manager has recommended the termination of my employment for the reasons described above and that I have been suspended for 3 days while a decision regarding my employment status is made. I understand that the final decision regarding my employment status will be made by the General Manager. The suspension period will provide time for an investigation of all facts that led to this recommendation. I understand that the General Manager will be conducting this investigation. I further understand that if I feel I have information which will influence the decision, I have a right to and should discuss it with the General Manager. I am to report to my manager on July 13, 1998 at 10:00 a.m. Petitioner was asked to sign the foregoing notice, but refused to do so. Ms. McKaon conducted a thorough investigation into the incident. Following her investigation, she came to the conclusion that there was "enough evidence to terminate" Petitioner. As a result, she recommended that Ms. Littlefield take such action, the same recommendation made by Ms. Wiggins. After receiving Ms. McKaon's and Ms. Wiggins' recommendations, Ms. Littlefield decided to terminate Petitioner's employment. The termination action was taken on or about July 23, 1998. At this time, the Facility was on "moratorium" status (that is, "not allowed to accept any more patients") as a result of action taken against it by the Agency for Health Care Administration because of the "many" complaints of mistreatment that had been made by residents of the Facility. Ms. Wiggins was given the responsibility of personally informing Petitioner of Ms. Littlefield's decision. After telling Petitioner that her employment at the Facility had been terminated, Ms. Wiggins escorted Petitioner out of the building and to the parking lot. In the parking lot, Ms. Wiggins said to Petitioner something to the effect that, she, Ms. Wiggins, was "going to take all of the black nurses in the Facility." (What Ms. Wiggins meant is not at all clear from the evidentiary record.) Following Petitioner's termination, the racial composition of the CNA staff at the Facility remained the same: all-black, as a black CNA filled Petitioner's position. There has been no persuasive showing made that Petitioner's race played any role in Ms. Littlefield's decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondent is not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's Petition for Relief based on such finding. DONE AND ENTERED this 20th day of June, 2003, in Tallahassee, Leon County, Florida. 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 20th day of June, 2003.
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 27th day of October, 2004.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of March, 2008.
The Issue The issue is whether Respondent, City of Ocala (“the City”), retaliated against Petitioner, Nyleah Jackson (“Petitioner” or “Ms. Jackson”), for exercising her right to file a claim of employment discrimination against the City pursuant to section 760.10, Florida Statutes (2018).1/
Findings Of Fact The City is an employer as that term is defined in section 760.02(7). Petitioner, an African American female, was hired by the City as an Administrative Specialist II on May 2, 2016. She worked in that job position until her resignation on February 7, 2018. Petitioner initially worked in the City’s Electric Utility Department and then transferred to the Public Works Department. Her duties were primarily secretarial, clerical, and administrative. Petitioner testified that when she started in Public Works, her direct supervisor was Tom Casey, but that at some point Judy Wade appeared to take over at least some of those supervisory duties. In her telling, Petitioner never recognized Ms. Wade as her direct supervisor except as to specific tasks delegated by Mr. Casey. Ms. Wade was the Fiscal Administrator for Public Works. She testified that Tom Casey and Darren Park are her superiors in Public Works. Ms. Wade credibly testified that she was Petitioner’s direct supervisor for the entire time that Petitioner worked in Public Works. Ms. Wade’s supervisory duties included monitoring Petitioner’s attendance at work and her leave requests. Petitioner’s testimony that she was unaware Ms. Wade was her direct supervisor for all purposes is not credited. On or about August 25, 2017, Petitioner presented a formal grievance to the City alleging that she had been discriminated against because of her race when she was not hired for a vacant Administrative Assistant III position. On or about August 31, 2017, Human Resources and Risk Management Director Jared Sorensen spoke with Petitioner and asked her to clarify whether she was pursuing a formal grievance under the City’s Collective Bargaining Agreement (“CBA”) with the International Brotherhood of Electrical Workers or under the City’s Employee Handbook. Petitioner responded that she wished to file her grievance under the CBA. On September 13, 2017, Petitioner sent an email to Mr. Sorensen, with copies to Mr. Casey and Mr. Park. The email stated as follows, in relevant part: Both the City of Ocala Employee Handbook and Collective Bargaining Agreement allows [sic] a response in writing within 10 business days of receipt of the grievance. I spoke with Tom Casey and Darren Park as well as sent my grievance, via interoffice to Human Resources, on August 25, 2017. From my meeting, I gathered that classification matters, discriminatory/biased hiring decisions and equal pay issues is [sic] in the Human Resource jurisdiction. I received a call last week from Jared stating that the target response date was September 8th, 2017 but I would have a definitive response by September 11th, 2017. I plan to hold my employer/HR accountable and liable to this deadline as promised. It is now September 13th with no response. The email concluded with a demand for a response regarding Petitioner’s remedies no later than September 14, 2017. The record evidence indicates that the City’s response was delayed for two reasons. First, Petitioner had indicated that she wished to pursue her grievance through the CBA, and Mr. Sorensen’s conversations with Petitioner’s union representative led him to believe that Petitioner’s grievance was going to be refiled to clearly establish a starting date for the CBA process. Second, Hurricane Irma had just passed through the state, causing significant damage in Marion County and delaying the City’s ability to respond to non-emergency matters such as Petitioner’s grievance. Of greater significance to this retaliation case, Petitioner’s direct supervisor, Ms. Wade, was not copied on any of the correspondence regarding Petitioner’s discrimination claim or her grievance. The only way Ms. Wade would have known of these matters was through word-of-mouth in the office. Ms. Wade credibly testified that she was unaware of any of these matters at the time they were occurring. Petitioner believed that Ms. Wade knew of her complaints, but provided no direct evidence of Ms. Wade’s knowledge. One week after her email to Mr. Sorensen, on September 20, 2017, Petitioner interviewed for an open position in the City’s Fleet Department. The Fleet Department is separate from Public Works and is located in a different building. Ms. Wade testified that Petitioner did not inform her that she would be absent from the Public Works office or that she would be interviewing for a position in the Fleet Department. Ms. Wade stated that she checked Petitioner’s office and saw that she was not present. Ms. Wade asked a co- worker about Petitioner’s location and was informed that Petitioner was out at a job interview. Petitioner testified that she told Ms. Wade that she would be out of the office. She did not tell Ms. Wade why she was going out. Petitioner testified that she believed Ms. Wade was not her supervisor and had no reason to know that she was going out on a job interview. Petitioner stated that she told Mr. Casey why she would be out of the office. Petitioner did not call Mr. Casey as a witness to corroborate her version of events. As indicated above, the undersigned does not credit Petitioner’s assertion that she did not believe Ms. Wade was her direct supervisor. When Petitioner returned to the office, Ms. Wade informed her that she was required to use paid time off (“PTO”) for personal business such as job interviews. Ms. Wade sent a request through “Kronos,” the City’s payroll software system, to dock Petitioner for 30 minutes of PTO for the time she was not in the office. Within a few days of making the Kronos request, Ms. Wade discussed the matter with Mr. Sorensen, who told her that City policy provided that employees could interview for other open positions within the City without using any PTO. The time used for such internal interviews was to be treated as regular work time. Evidence produced at the hearing indicated that Petitioner had gone out on such internal interviews previously and not been charged with PTO. Ms. Wade, having learned that she was mistaken regarding City policy, took steps to restore Petitioner’s PTO. On September 26, 2017, Ms. Wade submitted a payroll correction to adjust Petitioner’s pay to her full regular hourly rate. On October 3, 2017, Ms. Wade informed Petitioner of her mistake and that she had reversed the docking of Petitioner’s PTO. Petitioner contended that Ms. Wade’s docking of her pay was in retaliation for her complaint of discrimination and filing of a grievance. Petitioner stated that Ms. Wade’s reversal of the PTO decision was due solely to the fact that Petitioner contacted her union representative about the matter. Petitioner conceded that the only evidence connecting her discrimination complaint to Ms. Wade’s action on September 20, 2017, was their proximity in time. Ms. Wade credibly testified that she did not know about Petitioner’s discrimination complaint on September 20, 2017, and that no one working for the City ever instructed her to take any adverse action against Petitioner. On October 2, 2017, the FCHR received Petitioner’s initial Employment Complaint of Discrimination. The FCHR sent a Notice of Filing of Complaint of Discrimination to the City. The Notice was dated October 3, 2017, but was not received by the City until October 6, 2017. Ms. Wade testified that she was unaware of any potential claim of discrimination by Petitioner prior to October 6, 2017. Petitioner claimed that Ms. Wade was aware of Petitioner’s intention to file the discrimination complaint when Ms. Wade originally docked Petitioner’s PTO in September 2017. To support this claim, Petitioner first testified that one of the emails she sent regarding her potential discrimination complaint was copied to Ms. Wade. When the actual emails were produced by the City and showed that Ms. Wade was not copied on any of them, Petitioner testified that she had told Ms. Wade of her discrimination complaint at a meeting that included Ms. Wade and Mr. Park. Ms. Wade credibly testified that she had no memory of discussing the discrimination complaint with Petitioner at a meeting. Petitioner did not produce Mr. Park as a witness to corroborate her testimony regarding a meeting. Ms. Wade’s testimony is credited on this point. Petitioner failed to demonstrate that Ms. Wade’s actions on September 20, 2017, were in retaliation for Petitioner’s discrimination complaint. On November 20, 2017, the City hired Erica Wilson as the new Administrative Specialist III to work in Public Works. She assumed the duties of the previous Administrative Specialist III, Melinda Day, who had retired. Petitioner and Ms. Day had worked cooperatively in preparing payroll reports for Public Works. Petitioner would summarize the payroll cards for the stormwater division, and Ms. Day would summarize the payroll cards for the streets and traffic divisions. Once the summaries were completed, either Petitioner or Ms. Day would transmit them by email to the Payroll Department. Petitioner and Ms. Day alternated the task of sending the email to Payroll, with each employee transmitting the information every other week. After Ms. Day retired, Public Works was shorthanded for a time. During this period, Petitioner began summarizing all of the payroll cards for the stormwater, streets, and traffic divisions, and transmitting all of that information to Payroll on a weekly basis. After Ms. Wilson was hired at Public Works, Petitioner continued to perform her new duties while Ms. Wilson came up to speed on her new job. In January 2018, Ms. Wade convened a meeting with Petitioner and Ms. Wilson to discuss the transition for Ms. Wilson to take over the payroll duties formerly performed by Ms. Day. At the conclusion of the meeting, Ms. Wade announced that Ms. Wilson would be in charge of sending all the emails to Payroll and Petitioner would continue summarizing all of the pay cards for all three divisions of Public Works.2/ In other words, the work would be divided more or less as it was before Ms. Day retired. At the meeting with Ms. Wade and Ms. Wilson, Petitioner voiced no dispute or concerns with the division of duties ordered by Ms. Wade. Neither Ms. Wade nor Ms. Wilson recalled Petitioner’s being upset by or objecting to the plan outlined by Ms. Wade. Petitioner herself conceded that she said nothing to indicate her disagreement with the re-assignment. Petitioner contends that Ms. Wade’s decision to take some of Ms. Day’s former duties from her and assign them to Ms. Day’s successor was a retaliatory reduction of her job duties. Again, Petitioner’s only evidentiary support for her contention is that the alleged retaliatory action occurred after she made her discrimination complaint with the FCHR. Ms. Wilson testified that she considered the entire matter of payroll duties to be a minor part of her job. Ms. Wade testified that her only intention in redistributing duties was to restore the status quo ante from before Ms. Day retired. Also in January 2018, another event caused Petitioner to believe that Ms. Wade was retaliating against her. Petitioner alleged that Ms. Wade further reduced her job duties by forbidding her to contact vendors used by the City or to contact City employee John Long, who was the City’s Vendor Relations Manager. The specific issue concerned Petitioner’s contacts with UniFirst, the vendor who laundered uniforms for every department of the City. Petitioner’s routine job duties included taking delivery of uniforms for Public Works employees from UniFirst drivers. She discussed with those drivers any issues regarding the number of uniforms delivered, the condition of the uniforms, and the amount of the invoice. Petitioner had no responsibility for dealing with UniFirst’s management on behalf of the City as a whole. In April 2017, Petitioner inserted herself into a quality of service dispute with UniFirst. Uniform shirts were coming back from UniFirst in a soiled and threadbare condition. At first, Petitioner followed protocol and addressed her complaints to Mr. Long, who conveyed them to Jeff Peterson, UniFirst’s district service manager. However, after some back- and-forth between Mr. Long and Mr. Peterson, Petitioner elected to send an email of her own to Mr. Peterson. Ms. Wade considered this action unprofessional and counseled Petitioner about it. Ms. Wade did not believe further discipline was necessary because the situation was unlikely to recur. However, in January 2018, a similar quality control issue arose with UniFirst. Mr. Long and Petitioner exchanged emails that indicated Mr. Long believed Petitioner was the City’s point person regarding UniFirst, based on her handling of the previous issue in 2017. However, Ms. Wade directed Petitioner not to contact UniFirst management directly because the City employed Mr. Long to handle citywide vendor relations. Petitioner alleged that Ms. Wade had instructed her to have no contact with anyone from UniFirst, and that this instruction amounted to a retaliatory reduction of her assigned duties. At the hearing, Ms. Wade made it clear that her order was meant only to stop Petitioner from contacting UniFirst’s management, an action that was never in Petitioner’s scope of duties. Petitioner was still expected to deal with the UniFirst driver who delivered uniforms to Public Works. Her job duties were unchanged. Petitioner alleged that Ms. Wade retaliated against her by denying her leave to which she was entitled. On February 5, 2018, Petitioner requested that she be allowed to use 2.5 hours of accrued “safety time”3/ that afternoon, and her “floating holiday”4/ on the following day, February 6, 2018. Ms. Wade denied the request. Petitioner nonetheless left work early on February 5, 2018, and did not come into work on the following day, missing 10.5 hours of work in total. The City applied Petitioner’s accrued PTO time, 6.2 hours, to the time she missed work. For the remaining 4.3 hours, Petitioner was charged for leave without pay. Ms. Wade testified that she denied the leave request because the Public Works Department has a written policy stating that if an employee is requesting fewer than five days off, the request should be made no less than 48 hours prior to the employee’s absence.5/ Ms. Wade stated that the policy’s purpose was to ensure that enough employees were present to perform needed work. Supervisors have discretion to deviate from the policy, but only where the employee shows good cause for the failure to provide sufficient notice. In this case, Petitioner provided Ms. Wade with no reason for her request. Petitioner testified that she was never made aware of the policy, and suggested that the City invented the policy after the fact as a response to her claim of discrimination. Petitioner presented documents showing that she had previously been allowed to take time off with less than 48 hours’ notice. Ms. Wade reviewed Petitioner’s documents at the hearing. She did not recall the specific details of any particular leave request, but testified as to her general practice in granting leave with less than 48 hours’ notice. Ms. Wade stated that in some cases, Petitioner had likely made an oral request more than 48 hours prior to the leave, but did not submit the written request into the Kronos system until later. In such cases, Petitioner’s leave request would have been granted. In other cases, Petitioner had likely presented Ms. Wade with extenuating circumstances justifying the short notice. Ms. Wade demonstrated her department’s even-handed application of the policy by producing contemporaneous records showing that other Public Works employees had been denied the use of safety hours and floating holidays when they failed to give 48 hours notice to their supervisors. Petitioner failed to establish that Ms. Wade’s denial of her leave request was retaliatory. Petitioner offered evidence on two issues that were beyond the scope of her Employment Complaint of Discrimination regarding retaliation. First, she claimed that the City retaliated against her by denying her the ability to use “flex time” to work an extra hour on February 1, 2018, so that she could leave an hour early on February 2, 2018. Petitioner claimed that this denial was in derogation of the City’s policy and prior practice. Second, Petitioner claimed that the City retaliated against her by denying her request to attend a training class. The City objected to Petitioner’s presentation of this evidence because these matters were not covered in Petitioner’s second Employment Complaint of Discrimination regarding retaliation. Petitioner conceded that these matters were not mentioned in her retaliation complaint, but maintained that she had submitted materials on these issues to, and discussed them with, the FCHR. She also raised the issues in her subsequent Petition for Relief. The undersigned allowed Petitioner to present her evidence because of the ambiguity of the procedural situation. It appears that during its investigative phase, the FCHR accepted evidence from Petitioner as to issues outside the four corners of Petitioner’s retaliation complaint. However, the FCHR ultimately issued no finding as to probable cause. Thus, it is unclear which issues the FCHR formally considered. While finding persuasive the City’s argument that Petitioner should be held to the issues raised in her Employment Complaint of Discrimination, the undersigned decided that if he were to err, it would be on the side of allowing Petitioner to present all of her evidence at the hearing. As to the first issue outside the Employment Complaint of Discrimination, Petitioner testified that, on February 1, 2018, she requested that she be allowed to work an extra hour and then use the “flex time” to take an hour off work the next day. Petitioner presented an email chain between Ms. Wade and her regarding this request. Ms. Wade ultimately denied the request on the ground that the City does not allow employees to “flex ahead,” i.e., work extra time now in anticipation of taking time off later. Ms. Wade told Petitioner that she would be allowed to flex an hour on February 1, 2018, and then work through her lunch hour on February 2, 2018. Petitioner testified that the City had always allowed her and other employees to flex ahead, and that the denial in this instance could only be explained as retaliation by Ms. Wade for her discrimination complaint. Petitioner did not offer evidence of the City’s written policy on flex time or evidence that the City even had such a policy. She offered exhibits purporting to demonstrate that she and other employees had been allowed to work extra time on one day to take time off on a later date. However, the coding on these documents was not clear and Petitioner did not adequately explain them. The City declined to offer evidence on this issue because of its contention that it was outside the scope of Petitioner’s Employment Complaint of Discrimination. Petitioner failed to establish that Ms. Wade’s stated view of the City’s flex time policy was incorrect or that Ms. Wade deviated from past policy and practice by declining to allow Petitioner to flex ahead on February 1, 2018. As to the second issue outside the Employment Complaint of Discrimination, Petitioner testified that on October 12, 2017, she submitted a request to Ms. Wade to take two training courses being offered by the City: “Attitude Means Everything” and “Communicating with Diplomacy and Tact.” Ms. Wade gave Petitioner permission to take the first class but denied her permission to take the second. Ms. Wade testified that the “Communicating with Diplomacy and Tact” course was designated as a “leadership” course, meaning that only supervisors are generally approved to take it. Petitioner’s position with the City was not supervisory. Petitioner showed Ms. Wade a document that Petitioner stated was a list of employees who had attended the “Communicating with Diplomacy and Tact” course. Petitioner asked Ms. Wade whether all of the listed people were supervisors. Ms. Wade testified that she could not answer the question because she did not know the people on the list, none of whom were employed by Public Works. Petitioner herself did not identify the employees on the list. In the absence of any evidence to demonstrate that Ms. Wade did anything more than follow City policy on training course participation, it cannot be found that Ms. Wade retaliated against Petitioner by denying her request to take the “Communicating with Diplomacy and Tact” course. On February 7, 2018, Petitioner voluntarily resigned her employment with the City. Petitioner alleged that her resignation was a “constructive discharge” due to the City’s denial of paid leave time for February 6, 2018, as well as the other allegedly adverse retaliatory actions taken by the City since the filing of her discrimination complaint. Petitioner offered no credible evidence that the City retaliated against her for engaging in protected activity. The only employee specifically cited by Petitioner as allegedly retaliating against her was her direct supervisor, Ms. Wade. The evidence established that Ms. Wade became aware of Petitioner’s discrimination complaint no earlier than October 6, 2017, after she allegedly retaliated against Petitioner by requiring her to use PTO for an internal job interview. Additionally, Ms. Wade rectified the situation as soon as Mr. Sorensen corrected her understanding of City policy. None of the later allegations of retaliation were credible. In January 2018, Ms. Wade gave Petitioner some minor Administrative Assistant III duties at a time when Public Works was shorthanded, then gave those duties back to the Administrative Assistant III position after the new person was hired and learned the job. There was no reason for Petitioner to take offense at this routine reshuffling of minor job duties. Also in January 2018, Ms. Wade directed Petitioner not to contact UniFirst’s management regarding citywide vendor performance issues. Such contacts were not part of Petitioner’s job duties and Ms. Wade had already counseled Petitioner against taking it upon herself to send emails to UniFirst’s management. Petitioner’s actual job duties in relation to UniFirst’s delivery of uniforms to the Public Works Department never changed. Ms. Wade’s denial of Petitioner’s February 5, 2018, leave request was in keeping with the express policy of the Public Works Department that leave requests be made at least 48 hours prior to the employee’s absence from work. The evidence established that this was not a rigid policy, but Petitioner failed to show that she presented Ms. Wade with the kind of extenuating circumstances that historically have been the basis for granting leave requests less than 48 hours before the employee’s proposed absence. There was nothing retaliatory about Ms. Wade’s following the stated policy of Public Works. Petitioner was allowed to raise two issues that were not included in her Employment Complaint of Discrimination regarding retaliation. As to these issues, Petitioner failed to offer proof sufficient to establish that either Ms. Wade’s denial of her request for flex time or Ms. Wade’s denial of Petitioner’s request to attend a “leadership” training course was an incident of retaliation. Petitioner failed to prove any incidents of retaliation. Because she voluntarily resigned her position with the City, Petitioner did not establish that the City took an adverse employment action against her in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Ocala did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 28th day of May, 2019.
The Issue : The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an unlawful employment practice by being allegedly retaliated against by termination from employment for purportedly making complaints concerning alleged discriminatory practices toward Hispanic employees.
Findings Of Fact The Petitioner was hired by the Escambia County Health Department (Department) the Respondent herein, as a Community Health Nursing Supervisor. It was the Petitioner's duty to supervise nursing staff under her direction and to perform their employee evaluations. She, in turn, was responsible to her supervisor, Jennifer Carter. The Petitioner maintains that she was retaliated against by the Respondent, in the employment action taken, because she complained to her supervisors concerning what she claimed was discriminatory conduct toward Hispanic employees by other employees of the Respondent. The Petitioner, for instance, made reference to an employee, Annette Thrasher, who purportedly made reference to "those people" in a meeting when referring to Hispanic people or employees. The Petitioner, however, did not make a formal complaint about that matter when offered the opportunity to do so. Maribel Reyes is a Hispanic employee. She testified that another employee, possibly employee Thrasher, criticized her as well as Esperanza Rietz, also a Hispanic employee, for speaking the Spanish language at work. Ms. Reyes and/or Ms. Rietz took a complaint about this matter to the Petitioner. The Petitioner did not act to resolve it, however, and therefore Ms. Reitz took her concerns about criticism of her speaking in Spanish to the Petitioner's supervisor, Ms. Carter. The issue was then resolved quickly by Ms. Carter, who assured Ms. Rietz that she could speak any language she wished; that there was no prohibition against that. The Respondent had contended that this was one of the instances of purported discrimination against Hispanic employees which she purportedly defended against and made complaint about to the Respondent's management. In fact, the complaint had been made to her by the Hispanic employee referenced above and she had done nothing about it. In any event, the fact that the Petitioner's supervisor, Ms. Carter, acted quickly to assure Ms. Reyes and indeed Ms. Rietz, that the Respondent's management did not tolerate employment conduct indicative of such discrimination, tends to belie the Petitioner's contention that the Respondent retaliated against her for making a complaint about discrimination against Hispanic employees. Rather, it was her supervisor, and the Respondent's management who acted to ensure that such potentially discriminatory conduct was not condoned. This belies any likelihood that the Respondent would have retaliated against the Petitioner for following the same policy, had she done so. When she was hired the Petitioner's supervisor, Ms. Carter, instructed her to include Ms. Carter in any meetings and/or discussions with employees concerning those employees' performance evaluations, especially if the evaluations were contemplated to be negative ones. The Petitioner was still a probationary employee herself, and Ms. Carter, as her supervisor wanted to ascertain that she had followed instructions and was doing the employee performance evaluations in accordance with the Respondent's relevant personnel rules and policies. In fact, however, the Petitioner failed to follow Ms. Carter's instructions and completed a number of performance evaluations and meetings with the affected employees without informing Ms. Carter or securing her presence at those discussions. The testimony of witnesses Jessie Wilson and Jennifer Carter, established that the Petitioner gave Jessie Wilson an unfair and inaccurate employee performance evaluation. She excessively criticized and was rude toward Jessie Wilson. The Petitioner apparently made a comment somewhat to the effect that Ms. Wilson, who is white, had a "Jim Crow" attitude or an "overseer" mentality. The Petitioner was overly critical, demeaning, and rude toward employees at various times. She embarrassed and criticized Esperanza Rietz, an employee she supervised, in front of the employee's co-workers and disclosed her personal medical information improperly to Ms. Rietz's co-workers. Velda Gardner is a Health Technician in the health unit. Ms. Gardner took a long lunch period one day, taking an extra hour. She took the extra hour from administrative leave she was entitled to as "compensation time." The Petitioner wrongfully docked her the hour of administrative leave time. Ms. Gardner demonstrated to the Petitioner, with a witness, that she was entitled to the hour of administrative leave time or compensation time but the Petitioner refused to accept her truthful explanation. She effectively and wrongfully accused Ms. Gardner of lying. In addition to prompting employee Jessie Wilson to file a grievance against the Petitioner because of the untrue, inaccurate, and overly disparaging evaluation concerning Ms. Wilson's performance, the Petitioner yelled at and criticized Ms. Wilson in front of her peers. She also treated other employees in front of peers in a similar fashion at various times. Ms. Rietz worked as a Spanish language interpreter for the Respondent. The Petitioner disparaged her in front of other employees. Ms. Rietz felt demeaned by this. On another occasion the Petitioner approached a physician, Dr. Tamalo, in the hallway outside her office and commenced yelling at him and berating him in a loud, rude manner. This was overheard by witnesses Virginia Howard and Gracie Stovall, employed, respectively, in the nearby Family Planning Clinic and Family Health Clinic. According to these two witnesses, "everyone in adjoining rooms could hear it." The Petitioner behaved in a very loud, rude disparaging way to Dr. Tamalo and another physician. Jennifer Carter, as referenced above, is employed by the Family Health Clinic and is the Petitioner's supervisor. She corroborated the testimony of witness Jessie Wilson concerning the Petitioner's "Jim Crow" reference and described the above-named witnesses' and employees' complaints concerning the Petitioner's conduct towards them, corroborating the nature of their complaints. Witness Carter described Respondent's Exhibit A, which is Jessie Wilson's performance evaluation, as being in some respect harsh and demeaning, with the same sort of criticisms directed at the Respondent's Exhibit B, the performance evaluation of Tammy Buckney. These evaluations were not done in accordance with Ms. Carter's instruction. Ms. Carter, in fact, had to re-formulate and re-draft three of the six employee evaluations she received from the Petitioner because they were inaccurate, overly disparaging, and not done according to her instructions. Ms. Carter is the Assistant Community Health Nurse of the Escambia County Health Department. Ms. Carter thus corroborated the testimony of other employees that the Petitioner's treatment of staff members under her supervision was frequently rude and demeaning. Ms. Carter also corroborated the testimony of Ms. Reyes in establishing that no discrimination against Hispanic people was tolerated by the Respondent, nor to the knowledge of Ms. Carter had occurred. Dr. John Lanza is director of the Escambia County Health Department. He is the ultimate supervisor of the Petitioner as well as all other employees of the Department, including Jennifer Carter. Dr. Lanza has been with the Department of Health for 15 years. He has never heard any reports of discrimination against Hispanics or as to Ms. Rubin herself. Ms. Rubin is Black. Dr. Lanza became aware through reports of his management team, such as Dr. Susan Turner, Barbara McCullough, and Jennifer Carter of the Petitioner's disparaging, and rude treatment of employees under her supervision. He also learned that she failed to participate in her clinic duties. Dr. Lanza, as director of the health department, is authorized to dismiss Department personnel. He dismissed the Petitioner because she failed to follow her supervisor's instructions, was unacceptably rude and overly critical of employees under her supervision. She was demeaning at times toward employees and even was rude to two physicians at the Department whom she had no authority to supervise. These criticisms, which have been established as true by the preponderant evidence in this record, and the fact that all this deficient conduct occurred while the Petitioner was still in her probationary period after her hiring, motivated Dr. Lanza to dismiss the Petitioner from employment. When Dr. Lanza made this decision he was unaware of any allegation of any discrimination directed toward Hispanic employees anywhere in the Escambia County Health Department. Because he was unaware of such allegations of discrimination, akin to that complained of in the Petition for Relief, he could not have retaliated against the Petitioner for taking a stand or making complaints about alleged discriminatory conduct directed toward Hispanic employees.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of August, 2008, in Tallahassee, Leon County, Florida. S 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 August, 2008. COPIES FURNISHED: Edna M. Rubin 1140 East Baars Street Pensacola, Florida 32503 Rodney M. Johnson, Esquire Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner, Marlowe D. Robinson ("Petitioner"), was unlawfully discriminated against by Respondent, Broward County School District ("BCSD"), his employer, based on his disability and in retaliation for complaining about discrimination, in violation of chapter 760 of the Florida Statutes, the Florida Civil Rights Act; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner worked for BCSD for approximately 20 years prior to the termination of his employment on May 8, 2018. Petitioner is a disabled veteran. At the time of his termination, Petitioner was employed as the Head Facility Serviceperson at BCSD's office in the Katherine C. Wright Building ("KCW"). On February 5, 2016, Richard Volpi began working at KCW as the Manager of Administrative Support and as Petitioner's immediate supervisor. During Mr. Volpi's third day on the job, Petitioner told him that he was not happy that Mr. Volpi was at KCW and that KCW was "his house." He also told Mr. Volpi that he did not work because he "delegated to his crew." On February 18, 2016, Petitioner filed two internal labor grievances. In the first, he asked to have his job title changed to "Building Operations Supervisor." In the second grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin, Chief of Staff, created a hostile and unclean work environment. Mr. Volpi processed the grievances by having a meeting with Petitioner on February 25, 2016. Finding no basis for the grievances in the collective bargaining agreement, Mr. Volpi denied them. On October 10, 2016, Mr. Volpi met with Petitioner to discuss a significant pattern of Petitioner coming in late, failing to notify BCSD when arriving late, staying after his scheduled shift to make up time without authorization, failing to call in as required for sick days, and failing to have pre- authorization for using accumulated leave. After the meeting, Mr. Volpi issued a written "Meeting Summary," which included counseling, based on Petitioner having come in late 24 days since August 1, 2016, and only notifying Mr. Volpi's assistant of the tardiness on three of those 24 days. The "Meeting Summary" was not considered discipline and stated, "If for any reason you need to change your shift hours to assist you in getting to work on time, please let me know." On October 19, 2016, Petitioner filed his third internal labor grievance after Mr. Volpi became his supervisor. The third labor grievance made numerous allegations against Mr. Volpi, including, but not limited to, sexual harassment, unspecified Family and Medical Leave Act ("FMLA") violations, and retaliation for filing prior grievances. On October 26, 2016, Petitioner submitted a request for intermittent leave pursuant to FMLA. The next day, Petitioner was notified that his FMLA leave request was incomplete, and was therefore denied. Petitioner was later granted intermittent FMLA leave with the agreement that he was to provide advance notification of his anticipated absences. On November 9, 2016, Petitioner was notified in writing to appear at Mr. Volpi's office on November 16, 2016, for a pre- disciplinary conference to discuss Petitioner's failure to adhere to the directive of October 10, 2016, to notify Mr. Volpi if he was going to be late, out for the day, or working outside his scheduled hours. The letter specified that Petitioner was late October 11, 13, and 17, 2016, without notifying Mr. Volpi, and that Petitioner was late and worked past his regular scheduled hours on October 21, 25, and November 7, 2016. The letter also specified that Petitioner "called out" (took time off) without notifying Mr. Volpi on October 31 and November 1, 2, 3, 4, and 8, 2016. In response, Petitioner filed a fourth grievance against Mr. Volpi alleging retaliation, bullying, and violations of the Americans with Disabilities Act ("ADA") and various policies of BCSD. On November 16, 2016, Mr. Volpi memorialized in writing that Petitioner failed to show up for the November 16, 2016, pre-disciplinary meeting. On November 21, 2016, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on November 30, 2016, for a pre-disciplinary meeting to replace the original meeting scheduled for November 16, 2016. Petitioner was not disciplined for not showing up to the November 16, 2016, meeting. The meeting on November 30, 2016, went forward as scheduled and Petitioner was issued a verbal reprimand on December 5, 2016, his first discipline from Mr. Volpi, for Petitioner's ignoring the prior directive to contact his supervisor if he was going to be late, absent, or wanted to work beyond his scheduled shift. He was again reminded that he had to make such notifications and have permission in advance of working hours other than his regular shift. On January 12, 2017, Petitioner was granted a reasonable accommodation pursuant to the ADA. The accommodation granted permitted Petitioner to report to work within one hour of his scheduled work time and leave within one hour of his scheduled end time ("flex time"). Additionally, Petitioner was required to notify his supervisor in advance of using flex time. Mr. Volpi assisted Petitioner in the accommodation process. Mr. Volpi provided Petitioner the accommodation paperwork and advocated for Petitioner to be granted an accommodation. On January 26, 2017, Petitioner again came in late without providing Mr. Volpi advance notice of intent to use his flex time. On January 27, 2017, Mr. Volpi sent an email to Petitioner reminding Petitioner that he was required to notify him if he is going to be late. This was not considered discipline. On March 21, 2017, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on March 27, 2017, for a pre-disciplinary meeting regarding ongoing excessive tardiness and failure to adhere to his work schedule. On March 23, 2017, Petitioner filed his fifth internal labor grievance, again alleging harassment (among other claims) against Mr. Volpi. On March 28, 2017, Petitioner filed his sixth internal labor grievance, again making harassment allegations against Mr. Volpi. On April 6, 2017, Petitioner was issued a Written Reprimand by Mr. Volpi for his nine days of tardiness in February and March and his failure to notify Mr. Volpi in advance. On April 7, 2017, Petitioner appealed the Written Reprimand. Petitioner also filed his seventh and eighth internal labor grievances alleging discrimination on the basis of disability and retaliation. Petitioner filed his Charge with the FCHR on April 13, 2017. Mr. Volpi conducted a first-step grievance hearing on April 27, 2017, and as a result of the discussion with Petitioner, who agreed to notify Mr. Volpi in advance of his inability to arrive at work as scheduled, the April 6, 2017, Written Reprimand was reduced to a verbal warning. The FCHR dismissed Petitioner's Charge with a No Reasonable Cause Determination on October 10, 2017. Between January 1 and February 15, 2018, Petitioner came to work late 14 days without providing prior notice, was absent without leave two days, and worked overtime one day without prior authorization. As a result, BCSD issued a three- day suspension on February 21, 2018. On February 22, 2018, Mr. Volpi met again with Petitioner to go over the expectations and provided a reminder memo not to work unauthorized hours without prior approval. On March 13, 2018, Mr. Volpi asked BCSD to issue a ten-day suspension to Petitioner for his ongoing failure to report to work at assigned times, unauthorized overtime, and absences without leave. In response, Petitioner filed yet another labor grievance. BCSD approved the ten-day suspension on April 10, 2018. Despite the ADA accommodation, increasing discipline, multiple counseling meetings and reminders, Petitioner continued his pattern of tardiness, unauthorized overtime, and absences. Accordingly, BCSD terminated Petitioner's employment on May 8, 2018. Petitioner's discipline and ultimate termination were not performance based, but rather, related solely to ongoing attendance issues.
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 FCHR Petition 201700954. DONE AND ENTERED this 6th day of December, 2018, 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 6th day of December, 2018.
The Issue Whether Petitioner, Willie Foster, Jr., was discriminated against because of his race, age, and sex by Respondent, Pepsi-Cola Bottling Company, when Respondent failed to hire him, in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Responding to an advertisement, Petitioner and Jennifer Daniels traveled together to Respondent's Orlando location and applied for employment as merchandisers on August 1, 2003. Petitioner is a black male, who was 45 years old at the time of his application. Daniels is a white female, who was 25 years old during that same time. After Petitioner and Daniels completed their application forms and filled out other pre-hire paperwork, Petitioner and Daniels left Respondent's premises. Respondent later contacted each of them and asked them to appear to take a written employment test. Petitioner and Daniels took the same test on August 7, 2003. In August 2003, Respondent utilized a pre-employment written test devised by an independent company, Saville and Holdsworth, Ltd. This independent company was solely responsible for scoring the tests and compiling the test results. Respondent played no role in either of these tasks. Respondent's Human Resources Department merely administered the test, but did not possess the answer key to the test. Merchandiser applicants, such as Petitioner, take a two-part written test. The first portion of the test entitled, "Working with Words," was a timed reading comprehension test. The second portion was entitled, "Work Styles Questionnaire," and was a tool designed to determine whether the applicant was suitable to the position. Respondent uses a standard procedure in its hiring process, including the administration of the pre-employment test. First, only those applicants who satisfy established criteria, such as a stable work history, are offered the opportunity to take the written test. Second, only those applicants who pass the written test are allowed to progress to the next step of the hiring process, which is participating in an interview. No applicant who has failed the written test has ever been allowed to progress to the interview phase, nor has been hired by Respondent despite failing the test. However, applicants who fail the test are allowed to reapply and take the test again after six months. Respondent has hired individuals who, after failing the initial written test, reapplied after six months and then passed the test. Petitioner failed the written test he took on August 7, 2003. On that same date, Respondent notified Petitioner by letter that he failed the selection test, but could reapply and take the test again after six months. Petitioner never reapplied for employment at Respondent. The test administration, scoring, and notification process used by Respondent with respect to Petitioner's application was consistent with its standard procedures. Petitioner's answer sheets were faxed to Saville and Holdsworth, Ltd., on the day he took the test, August 7, 2003. Respondent received the test results from the independent company by fax on that same day. Also, on that same date Respondent forwarded a form letter to Petitioner notifying him that he failed the test. This sequence of events is not unusual in that Seville and Holdsworth, Ltd., sometimes scored the tests and provided the results to Respondent as quickly as five minutes after receiving the faxed answer sheets from Respondent. Daniels passed the written test. On the same day she took the test, Respondent notified Daniels by telephone that she had passed and scheduled her for an interview. The fact that Respondent's Human Resources coordinator apprised Daniels of her test results by telephone on the very day she took the test is not unusual. Respondent's testing procedures were audited by the Office of Federal Contract Compliance Programs, which found no discrimination with respect to the company's merchandiser group. At least 50 percent of Respondent's merchandisers are minorities. Of those applicants who applied for merchandiser positions in August 2003, the individuals whom Respondent screened-out initially and who were not allowed to take the written test included three blacks, three whites, one Hispanic, and one applicant whose minority status was unknown. The individuals hired as merchandisers from August 2003 to January 2005 included 20 whites, 11 blacks, and 13 Hispanics or other minority classifications. From June 1, 2003, through November 30, 2003, Respondent hired six whites, four blacks, four Hispanics, and one other employee. It is rare for a female to apply for a merchandiser position with Respondent. Similarly, merchandiser applicants typically are younger, rather than older individuals. From August 2003 to January 2005, Respondent hired one female and five age-protected (over the age of 40) individuals. Every merchandiser hired by Respondent during the relevant time period passed the written test; no applicant who failed the test has been hired. In addition, on his application form, Petitioner indicated the reason he left the employment of the Orange County Library was a "labor dispute." He also indicated his reason for leaving Universal Studios' employment was that his "contract ended." It was later determined that, in fact, both the Orange County Library and Universal Studios terminated Petitioner for insubordination. The employment application Petitioner signed included the language, "I understand that the information I provide in this application must be complete and accurate to the best of my knowledge. I realize that falsification and/or incomplete information may result in my employment being terminated now or at any time in the future." At the time of the hearing, Respondent considered Petitioner's statements of why he left his previous jobs as falsifications of the application. Respondent did not discover Petitioner's falsifications during the hiring process. Consistent with its policy, had Respondent discovered that Petitioner falsified his employment application during the hiring process, the application would not have been considered further. Similarly, if Respondent had hired Petitioner and discovered the falsification later, Respondent would have terminated Petitioner. Petitioner failed to prove that Respondent engaged in discriminatory hiring practices when Respondent failed to hire him in August 2003.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which denies the Petition for Relief. DONE AND ENTERED this 7th day of October, 2005, 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 7th day of October, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Willie Foster, Jr. 5542 South Rio Grande Avenue Orlando, Florida 32839 Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Cecil Howard, 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 are whether Respondent was the employer of Petitioner; and, whether Petitioner was terminated from his employment with Respondent because of his race.
Findings Of Fact Petitioner is a white male. At all times relevant to this matter, Petitioner was employed with the City of Tallahassee (City). Petitioner continues to be employed by the City. As part of its municipal function, the City of Tallahassee has the responsibility of maintaining drainage ditches located within the City limits. The Leon County Sheriff’s Office (Sheriff's Office) provides inmate work crews to the City for assistance in carrying out this responsibility. The Sheriff's Office also provides the inmates with any food or other items they require. The inmate work crews are supervised by City employees who have completed the Sheriff’s Office certification program for supervising inmates. The certification program is required because of security concerns involved with utilizing the labor of incarcerated individuals outside of the controlled environment of a jail. Because of security concerns, employees are instructed not to provide contraband to inmates. Contraband is defined as any item given to an inmate which the Sheriff's Office has not authorized to be given to the inmate. If any items are provided to inmates, all inmates must receive the item. Petitioner completed the certification program and was employed by the City to supervise inmate work crews. He was told during the training session that inmate supervisors could not provide contraband to inmates, but if any items were provided to inmates, all inmates must receive the item. On or about August 16, 2000, Petitioner gave a bucket of Popeye's chicken to an inmate under his supervision. The bucket of chicken had been given to Petitioner by a Popeye’s employee to give to the inmates because the Popeye's employee knew one of the inmates. Each inmate received a piece of chicken. However, even though Petitioner checked the bucket for weapons, Petitioner did not obtain or attempt to obtain authorization from the Sheriff's Office to give the chicken to the inmates. When Sergeant Lee, a Sheriff’s Office sergeant, visited the work site and saw the chicken bucket and that chicken had been eaten, he asked Petitioner if he had given the chicken to the inmates. Believing that he had done something wrong, Petitioner lied to Sergeant Lee and said that he had not given chicken to the inmates. Sergeant Lee instructed Petitioner to return the inmates to the Leon County Jail. While at the jail, Petitioner admitted that he had given the chicken to the inmates. Petitioner was advised by the Sheriff’s Office that he could no longer supervise inmates. The Sheriff's Office also advised the City that Petitioner was no longer certified to supervise inmates. The City then transferred Petitioner to another position but did not reduce his pay or benefits. On a date after Petitioner’s removal from supervising inmates, the City held a luncheon and invited inmates. There was no evidence presented that the invitation to lunch was or was not authorized by the Sheriff’s Office. Ted Hubbard, a white City employee, has provided watermelons to inmates and other unnamed black inmate supervisors were present when Leon County employees gave Gatorade and other items to inmates. Neither Hubbard nor any other person has been removed from supervising inmates. However, other than very vague references to these "other" supervisors, Petitioner offered no evidence of any similarities between his employment and these other employees or that the items allegedly given to the inmates were not authorized by the Sheriff's Office or that the Sheriff's Office even knew alleged contraband had been given to any inmates. Certainly, no other person lied about providing items to inmates. At no time did the Sheriff's Office make any employment decisions on behalf of the City. Likewise, at no time did the Sheriff's Office employ Petitioner. In fact, the City made all decisions with regard to Petitioner's employment and was the actual employer of Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of July, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2002. COPIES FURNISHED: Linda G. Bond, Esquire Powers, Quaschnick, Tischler & Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald H. Lairsey 8031 Smith Creek Road Tallahassee, Florida 32310 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black male. Respondent is a staffing company that contracts with third party employers. Over 80 percent of Respondent’s employees are Black. After Respondent matches a candidate with a job opening, the third-party employer interviews the candidate for employment. If the candidate is employed by the third party, the employee must abide by the third-party employer’s policies as well as the employment policies of Respondent. Petitioner was hired by Respondent some time in January 2008. Respondent requires all employees to notify Respondent of his or her absence prior to that employee’s scheduled report time for their employment. Respondent also requires that all employees report to work at their scheduled report time. Failure to either call in or show up for work is known as a ‘no call/no show’. The employment policies of Respondent reflect that a “no call/no show” is grounds for termination. Petitioner received a copy of Respondent’s employee handbook, which included the “no call/no show” provision. He was also aware of Respondent’s “no call/no show” policy. Around January 14, 2008, Respondent successfully matched Petitioner with a position at BR Williams Trucking Company (BR Williams). Like Respondent, BR Williams maintains a policy of termination when an employee fails to show up for work or does not call in prior to the start of the work day to report their absence. Petitioner’s scheduled report time for BR Williams was 7:00 a.m. On March 3, 2008, Petitioner contacted Respondent’s Regional Sales Manager, Diane Jarrett, to report that he had overheard a racial slur that a White employee, Harry Hingson, had made to another employee. Like Petitioner, Mr. Hingson had been placed at BR Williams by Respondent and was an employee of both Respondent and BR Williams. Ms. Jarrett sent Respondent’s Human Resources Assistant, Annis Herndon, to BR Williams to terminate Mr. Hingson for having made the racial slur. She met with Mr. Wilkinson, BR Williams’ manager. Mr. Hingson was terminated from BR Williams. Neither Ms. Jarrett nor Ms. Herndon disclosed that Petitioner had reported Mr. Hingson’s racial slur to her. After the termination, Mr. Wilkinson mentioned to a group of employees, including Petitioner, that he hated to fire Mr. Hingson because “everybody needs a job.” The evidence did not demonstrate that Mr. Wilkinson said that “once he found out who did this, they will pay.” Petitioner felt that Mr. Wilkinson was talking to him or targeting him because Mr. Wilkinson looked him in the eyes during the meeting. Mr. Wilkinson did not testify at the hearing. As a consequence, there is no competent evidence regarding Mr. Wilkinson’s intent showing any look he may or may not have given Petitioner. On March 24, 2008, Petitioner worked his regular shift at BR Williams. On the evening of March 24, 2008, Petitioner was arrested for driving while intoxicated (DUI) and was held in jail overnight. He was released two days later on March 26, 2008. On March 25, 2008, Petitioner was scheduled to begin his shift at 7 a.m. Petitioner did not report to work as scheduled because he was in jail. Petitioner also did not call Respondent to report his absence prior to the beginning of his shift or during the morning of March 25, 2008. Mr. Wilkinson called Respondent around 9:00 a.m. and reported that Petitioner was not at work and had not called in. He did not know where Petitioner was. Respondent could not locate Petitioner at his home. Mr. Wilkinson instructed Respondent that if he or Respondent did not hear from Petitioner before noon, Petitioner was terminated for not showing up at work and not calling in. About 1:00 p.m., after Petitioner was terminated by BR Williams, Petitioner called Respondent collect from jail. He was advised that he had been terminated from BR Williams. After speaking with Petitioner, Respondent called BR Williams to report that Petitioner had called in after noon and that she had told him that he had been terminated from BR Williams. Respondent did not tell Petitioner that he was terminated from Cardinal Staffing. BR Williams’ decision to terminate Petitioner was not based on his race or his complaint regarding Mr. Hingson’s racial slur. Indeed, there was no competent evidence to suggest that Petitioner was terminated from BR Williams for any reason other than he was in jail, and did not report to work as scheduled. Petitioner was not terminated from Cardinal Staffing. Petitioner left a message on Respondent’s answering machine on March 27 or March 28, 2008. Return calls by Respondent could not be left at the numbers that Respondent had for Petitioner. He did not contact Respondent again until August 2008, at which time there were no positions available for him. Importantly, Petitioner was not terminated from Respondent. As with all Respondent’s employees, Petitioner had the responsibility of calling Respondent as often as possible to check if other employment opportunities were available. If Petitioner had contacted Respondent to seek placement during April–June, 2008, and if a placement for which Petitioner was qualified had been available, Respondent would have sent him for an interview with the prospective employer. Indeed, it was Petitioner’s lack of action that caused him to miss any employment opportunities that may have been available to him during April – June, 2008. After August 2008, Petitioner did not contact Respondent to seek other employment opportunities. Petitioner identified two non-minority employees that were terminated from their third-party employer jobs and received new assignments with another of Respondent’s clients. The two employees were Jason Whibble and Sherita Cheshire. Neither of these employees was similarly situated to Petitioner. Mr. Whibble was terminated for having a felony conviction involving multiple traffic tickets. Ms. Cheshire was terminated because she could not perform her job duties. After termination, both employees called in on a daily or weekly basis to check to see if any job openings were available. In this case, Petitioner was terminated for a very different reason from BR Williams. Petitioner also did not frequently call Respondent to check for job openings that might be available to him. Indeed, Petitioner has not identified any similarly situated non-Black employee of Respondent’s who was terminated from an employment assignment on the basis of an employer’s “no call/no show” policy and was treated more favorably than Petitioner. The evidence was clear that Petitioner was not terminated from Cardinal Staffing and failed to maintain frequent contact with them. Clearly, Respondent did not discriminate against Petitioner. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009. COPIES FURNISHED: Walter Jan Pietruszka, Esquire Shumaker Loop & Kendrick 101 East Kennedy Boulevard, Suite 2800 Tampa, Florida 33602 Melvin Lee Butler 40 Jack Scott Road Quincy, Florida 32351 Robert E. Larkin, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 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
