The Issue The issue is whether Respondent, Handi House of Starke, Inc. ("Handi House") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2008),1/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, and by discharging Petitioner from his employment after a dispute with a similarly situated employee outside of his protected classification.
Findings Of Fact Handi House is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Handi House sells and delivers portable storage buildings. Handi House is a family owned business. It is currently owned by Christina Hewes, who took over the company from her father, John Curles, in 2003. Handi House pays its employees in a variety of ways, including hourly wages, salaries, and commission, depending on the work performed. Ms. Hewes and Mr. Curles are white. Petitioner, a black male, worked off and on at odd jobs and manual labor for Handi House and for Mr. Curles personally for more than 20 years. Ms. Hewes conceded that Petitioner has been affiliated with the family business for as long as she can remember. Petitioner testified that he worked for Handi House for 28 years, but was never formally placed on the company payroll. He stated that he never received a W-2 from the company and that Social Security taxes were never deducted from his pay. Petitioner testified that he was paid roughly $7.00 per hour and received a check every week. He placed into evidence two checks that he had received from Handi House. The first check was dated October 9, 2009, and was for $236.00. The second check was dated November 25, 2009, and was for $198.00. Ms. Hewes could not testify as to the business arrangement that existed between Petitioner and her father, but she knew her father always tried to find something for Petitioner to do when he needed work. Petitioner worked at other jobs as well as at Handi House. Ms. Hewes stated that since she has taken over the company, Petitioner has worked for her intermittently between arrests, time in jail, and probation. Petitioner did not have a driver's license, which limited his value to Handi House, as he could only act as an assistant on deliveries. Petitioner worked as an unskilled laborer whenever Ms. Hewes had work for him to do and he was available to do it. Ms. Hewes testified that when Petitioner was sober and willing, he worked better and harder than 90 percent of the people she had ever hired. However, Petitioner was unreliable. Ms. Hewes testified that there were many occasions when Petitioner came in to bail her out of a tough spot, but just as many occasions when his failure to show up as scheduled or his showing up drunk left the business "high and dry." Docket sheets from the Bradford County Clerk of Court from 2006 through 2009 show that Petitioner was arrested for driving under the influence (guilty plea), aggravated battery (nolle prosequi), and possession of drug paraphernalia (guilty plea), as well as for procedural violations such as failure to appear in court. Petitioner conceded that Ms. Hewes has bailed him out of jail on several occasions since she took over Handi House. Despite Petitioner's unreliability, Ms. Hewes continued to find work for him at Handi House. Petitioner lived directly behind the business, which helped to make him available on short notice. Ms. Hewes continued to use Petitioner even after Petitioner's stepson, who lived with Petitioner, was arrested for breaking into Ms. Hewes' office and stealing checks from the company checkbook. Ms. Hewes disputed Petitioner's contention that Handi House never properly paid him or deducted payroll taxes from his paychecks. In fact, it was Petitioner who insisted on payment as an independent contractor rather than an employee. Ms. Hewes testified that in 2008, her accountant advised her that if she was going to pay Petitioner more than $5,000 per year, she either had to place him on the payroll and have him work regular hours, or give him a Form 1099 if he was going to continue with piecemeal work. Ms. Hewes offered to place Petitioner on the Handi House payroll as a full-time employee. Petitioner declined the offer because he owed back child support and feared that it would be deducted from his pay if he became a regular employee. At the hearing, Ms. Hewes presented a Form 1099 for Petitioner showing that Handi House paid Petitioner $13,211.25 in nonemployee compensation during the year 2009. Ms. Hewes' testimony that Petitioner was always paid for his work, that he was paid in the manner of his choosing, and that Handi House properly reported the payments, is credited. The events that precipitated the dispute in this case began on a Friday in November 2009, when Petitioner went out on a delivery with Terrell "Peanut" Odom, a full-time employee of Handi House who drove the delivery truck. Mr. Odom is white. Ms. Hewes' undisputed testimony was that Petitioner and Mr. Odom were friendly with each other. They spent time together away from work, and had sold cars to each other. On the day in question, Petitioner and Mr. Odom had an argument on the way to make a delivery. Petitioner declined to describe the subject matter of the argument, but it so angered Mr. Odom that he turned the truck around and drove back to Handi House. Mr. Odom told Ms. Hewes that he did not want to work with Petitioner, and drove off alone to make the delivery. On the following Monday, Mr. Owens continued to refuse to take Petitioner with him on deliveries. Because Mr. Odom was a solid, reliable employee, Ms. Hewes declined to force him to work with Petitioner. Rather, she found work for Petitioner to do on the company's lot in Starke. She hoped that with time, tempers would cool and matters would return to normal. Petitioner worked around the Handi House lot for five days. On the fifth day, Petitioner's wife, Barbara Fraizer, left an abusive voicemail message for Ms. Hewes, who testified that Ms. Fraizer sounded drunk. Ms. Fraizer made threats of violence against Ms. Hewes, Ms. Hewes' mother, and employees of Handi House. Ms. Hewes testified that this was the final straw. She advised Petitioner that he was not to set foot on the Handi House lot again. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to anyone at Handi House. At the hearing, when Petitioner was asked whether he believed Ms. Hewes' motive in dismissing him was racial, he responded, "Not really." Petitioner offered no credible evidence that Handi House discriminated against him because of his race in violation of chapter 760, Florida Statutes. In an attempt to show disparate treatment between himself and similarly situated employees who were not members of the protected class, Petitioner testified that a white secretary named "Rebecca" was dismissed by Ms. Hewes on much more generous terms than was Petitioner. Petitioner testified that Rebecca received several checks at the time of and even after her dismissal, whereas Petitioner received only a few days of "piss work" after Mr. Odom refused to work with him. Ms. Hewes testified that Rebecca was not a secretary but a salesperson, and that the checks she received at the time of her dismissal and shortly thereafter were for commissions that she had earned. Ms. Hewes' testimony on this point is credited. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Handi House for his dismissal.2/ Partly out of loyalty to her father, and partly because of her genuine affection for Petitioner, Ms. Hewes continued to find work for Petitioner long after most business owners would have sent him packing. This is clearly not a case of racial discrimination, but something in the nature of a family argument that got out of hand. The evidence established that Petitioner was considered a good employee when he was sober and not in trouble with the law, and that Handi House made every good faith effort to keep him on the job. Ms. Hewes testified that she would have offered to bring Petitioner back to work at Handi House if not for his insistent pursuit of what she considered an unfounded and insulting claim of racial discrimination. The fact that Handi House had a long history of forbearance in regard to Petitioner's erratic behavior did not oblige it to continue that forbearance in perpetuity. When Ms. Hewes finally became fed up with Petitioner, she was not motivated by considerations of race, as Petitioner himself candidly admitted at the hearing.
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 Handi House of Starke, Inc., did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 26th day of May, 2011, 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 May, 2011.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on May 4, 2001.
Findings Of Fact Petitioner is an African-American woman who was employed by Respondent from July 2000 until her termination on January 24, 2001. At the time she was hired, the staff at the store location where Petitioner was employed was comprised of mostly black females. Initially, Petitioner held the position of hotline operator. In December 2000, she became an assistant manager of the store and another African-American woman, Latasha Green became the store manager. According to Petitioner, problems began to arise after she and Ms. Green were promoted to managerial positions. While an assistant manager, Petitioner's duties included closing the store and taking deposits to the bank where she had a key to the store's safe deposit box. On January 5, 2001, Petitioner and Ms. Green attended a meeting with their supervisor, Jason Rudd, a white male. This meeting was upsetting to Petitioner because of comments made to her and to Ms. Green by Mr. Rudd. In particular, Mr. Rudd commented that there were too many "dark clouds" in the store, which Petitioner interpreted to be racist remarks. At the January 5, 2001, meeting, Petitioner learned that a white male, Jason Smith, was going to be brought in as the new store manager. With this change in personnel, Ms. Green was demoted from store manager to assistant manager and Petitioner was demoted from assistant manager to hotline operator. When Petitioner was demoted, she did not receive a cut in pay. Petitioner informed Mr. Rudd that it was her intention to leave her employment with Respondent because her sister was ill. She informed Mr. Rudd that January 25, 2001, would be her last day. However, she was terminated on January 24, 2001. Between January 4 and January 24, 2001, three white males were hired, and four black females, including Petitioner and Ms. Miller, were discharged. The reason for her termination on the Report of Employee's Termination form was "not working out." However, on the same form, her job performance, attendance, and cooperation were rated as "good." Additionally, the form had a blank following the question, "Would you rehire this employee?" The blank was filled in, "yes." Petitioner filed for unemployment compensation and initially received $512.00 in unemployment benefits. However, after a telephone hearing, the Division of Unemployment Compensation informed her that she must repay the $512.00. At the time of her discharge, Petitioner was earning approximately $250.00 per week. Petitioner seeks back pay, the $512.00 in unemployment compensation, and a verbal apology from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that Respondent engaged in unlawful discrimination and paying Petitioner $50.00 in back pay. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2003.
The Issue Whether Petitioner was wrongfully terminated from her position as a payroll clerk with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Prior to November 1994, Petitioner was employed by Markings and Equipment Corporation, first as a receptionist, later as a payroll clerk for several years. She had a good working relationship with management and staff. In November 1994, Edward T. Quinn and two other investors purchased the assets of Markings and Equipment Co. and established a new corporation named Mill-it Striping, Inc., a Florida corporation. On November 7, 1994, Mill-It Striping began operations. Edward T. Quinn was named Vice-President and Chief Operating Officer. Petitioner and one other person were retained as office staff. Other employees of the former owner were retained as field workers in their same positions. Petitioner and the other employees were retained on a 90-day probationary period. All employees were required to complete application forms for the new company. The organization of the company was revamped and operating policies were changed. Petitioner and Quinn became embroiled in disputes over policy and procedures on a nearly daily basis. Quinn's management style was gruff and unprofessional. Foul language was directed toward Petitioner's work by Quinn on a regular basis. There was insufficient evidence to prove that Quinn's derogatory remarks of a social nature were directed toward Petitioner. On December 5, 1994, Petitioner was terminated from her position as a payroll clerk. Quinn alleged that Petitioner was terminated because of her poor work performance and reporting to work late on more than one occasion while on probation. Petitioner, who is an African-American female, was replaced in her position by a Caucasian female. Respondent's company presently has been administratively dissolved, as of September 24, 1999. There is no evidence that the corporation is active, is a subsidiary to another company, or that it has any remaining assets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. 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 29th day of December, 2000. COPIES FURNISHED: Azizi M. Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Edward T. Quinn as former Vice President Mill-It Stripping, Inc. 107 Shore Drive Longwood, Florida 32779 Valerie A. Roberts Post Office Box 543 Maitland, Florida 32751 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a software engineer with almost 30 years of experience in the industry. From 2001 until August of 2006, Petitioner was employed by ITT Industries (ITT). Petitioner's employment with ITT came to an end when he was involuntarily terminated. Following his termination, Petitioner filed an employment discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging that ITT had discriminated against him because he suffered from Tourette's syndrome (which caused him to have vocal tics and to stutter). Petitioner did not take any action to pursue these allegations of employment discrimination beyond filing this complaint against ITT with the EEOC. Petitioner has been unable to obtain a "permanent job" as a software engineer since his termination by ITT. Respondent is a defense contractor that "make[s] [military] simulation and training equipment." In early 2008, Respondent was looking to fill a temporary software engineer position. Edge Dynamics was one of the outside employment agencies that Respondent used to assist it in the hiring process. On January 9, 2008, Edge Dynamics provided Petitioner's resume to Edward Kaprocki, a senior principal software engineer with Respondent. Mr. Kaprocki was responsible for interviewing applicants for the position and making hiring/rejection recommendations. After reviewing Petitioner's resume, Mr. Kaprocki "thought [it] looked interesting enough where it would worth talking to [Petitioner]," and he so advised Sandra Asavedo, his "point of contact" at Edge Dynamics. Ms. Asavedo made the necessary arrangements to set up a face-to-face interview between Mr. Kaprocki and Petitioner. The interview took place in Mr. Kaprocki's office on January 14, 2008. It lasted about 45 minutes to an hour. Petitioner seemed to Mr. Kaprocki to be "a little bit nervous," but Petitioner did not do or say anything to cause Mr. Kaprocki to believe that Petitioner suffered from any disability. During the course of the interview, Petitioner showed Mr. Kaprocki his personal website, which contained information about and pictures of "some of the projects that [Petitioner] had worked on." Based on the interview, Mr. Kaprocki determined that Petitioner did not have the skill-set that was needed for the position Respondent was seeking to fill. Immediately following the interview, Mr. Kaprocki went to his supervisor, Steve Preston, whose office was "right down the hall," and recommended that Petitioner not be hired to fill the position. Mr. Kaprocki then telephoned Ms. Asavedo to let her know that Petitioner was not going to be hired so that she could inform Petitioner. Mr. Kaprocki's decision to recommend against hiring Petitioner had nothing to do with Petitioner's suffering from Tourette's syndrome or his having filed an EEOC complaint against ITT. Indeed, at the time he made his decision, Mr. Kaprocki did not even know that Petitioner had Tourette's syndrome or had filed an EEOC complaint against ITT. Mr. Kaprocki first learned of these matters only after Petitioner had filed his Complaint in the instant case. After being told that he would not be hired for the position, Petitioner telephoned Mr. Kaprocki several times, pleading with Mr. Kaprocki to "reconsider hiring him." Mr. Kaprocki told Petitioner "that the decision had been made" and would not be reconsidered. Mr. Kaprocki felt that Petitioner, by making these telephone calls, was "badgering and harassing him." To satisfy his own personal curiosity (and for no other reason), Mr. Kaprocki looked online to find out more about the person who was subjecting him to this "badgering and harass[ment]."2 Mr. Kaprocki did not discover, as a result of his online search, that Petitioner had Tourette's syndrome or that Petitioner had filed an EEOC complaint against ITT. His search, however, did reveal certain comments Petitioner had made in an online forum that Mr. Kaprocki considered to be "extremely unprofessional." After reading these comments, Mr. Kaprocki was even more confident than he had been before he began his search that he had made the right decision in not recommending Petitioner for employment. Petitioner was never offered a position with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of any unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2009.
The Issue Whether Respondent, Cracker Barrel Old Country Store (Respondent), committed the unlawful employment practice, as alleged, in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
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 no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2015.
The Issue 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 The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her national origin.
Findings Of Fact Arthrex is a company that designs and manufactures orthopedic surgical tools, implants and devices for surgeons, medical facilities, and hospitals. Arthrex is regulated by the United States Food and Drug Administration ("FDA") and maintains certification through the International Organization for Standardization ("ISO"). Arthrex is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner is a Hispanic female, whose primary language is Spanish. Beginning in June 2001, Petitioner worked in the cleaning and packaging area of Arthrex's production facility. "Cleaning" in this context should not be confused with janitorial services. Petitioner's job was more technical and exacting and involved the maintenance of a sterile, disinfected work area and equipment in the manufacture of items that, in some cases, are surgically implanted in the human body. She worked in the company of 10 to 12 co-workers within a relatively confined space. Arthrex obtains staffing for its cleaning and packaging area through an independent contractor, Randstad, a large employment services company. On June 13, 2003, Petitioner accompanied a friend to the local Randstad office to assist the friend in applying for a job with Arthrex in the cleaning and packaging area. Petitioner became angry with the Randstad representative who performed the screening and testing of Petitioner's friend. Petitioner believed that the Randstad employee decided at the outset not to hire her friend, and so tested the friend on difficult subjects having nothing to do with the Arthrex cleaning and packaging job, such as her ability to use a computer and her ability to "write, read and talk perfect English." Petitioner stated that other applicants were not subjected to the same scrutiny as was her friend and that both she and her friend felt humiliated by the "rude" Randstad employee. Immediately after the job interview, the Randstad representative phoned Margarita Alvarez, the human relations manager for Arthrex, and told Ms. Alvarez that Petitioner had "made a scene" at the Randstad office. Ms. Alvarez asked the Randstad representative to put her complaint in writing, and she would then address the matter with Petitioner. Shortly after the phone call, Ms. Alvarez was conducting an employee relations meeting in her office when Petitioner walked into her office. Petitioner began complaining loudly about the "ridiculous" hiring process employed by Arthrex, waving her hands and stamping her foot in anger. Ms. Alvarez told Petitioner that she would discuss the matter after her meeting was over. Petitioner walked out of Ms. Alvarez's office saying, "Thank you for nothing." Petitioner then proceeded to stamp her way down to her workplace, continuing to display her anger and disrupt the work of the other employees in her area by complaining loudly about Arthrex's hiring practices. Ms. Alvarez testified that Petitioner's behavior violated Arthrex's written policies regarding hostile, disruptive behavior in the workplace. Ms. Alvarez prepared a written warning called "performance correction notice" dated June 17, 2003. The notice described the disruptive behavior Petitioner engaged in on June 13, 2003, and stated that Petitioner was expected to maintain a "friendly work environment" and to express her disagreements with company policy "respectfully[,] . . . in private with [her] immediate supervisor or with Human Resources." The notice further warned Petitioner that any further "unprofessional conduct" (antagonism, disruptive behavior or hostility) could subject Petitioner to a "final warning." On the afternoon of June 18, 2003, Petitioner met with Ms. Alvarez and Lea Custodio, Petitioner's immediate supervisor, who had taken the day off on June 13, 2003. Ms. Alvarez presented Petitioner with the performance correction notice. She explained that while she understood Petitioner's frustration, she could not allow such displays of temper in the workplace. Ms. Alvarez testified that she believed Petitioner understood the situation, and she encouraged Petitioner to write down her thoughts, comments, or corrections before signing the notice. Ms. Alvarez told Petitioner that she could write her response in Spanish, if that would allow her better to express herself. Ms. Alvarez is fluent in Spanish. On June 19, 2003, Petitioner submitted a handwritten note to Ms. Alvarez. Written in Spanish, the note expressed Petitioner's belief that the Randstad representative discriminated against her friend by imposing unreasonable requirements for the cleaning position in question. Petitioner was not disciplined in any way for either the form or content of this note, which was incorporated with the performance correction notice as part of Petitioner's employment file. Petitioner testified that she could not recall having been disciplined for the June 13, 2003, incident. She denied causing a disturbance at the Randstad facility or at her own workplace. She admitted writing the note and submitting it on June 19, 2003, but testified that Ms. Alvarez asked her to document the incident because of other complaints she had received about the Randstad representative. Petitioner's testimony is inconsistent with the documentary evidence, including the self-justifying language of her own handwritten note. Ms. Custodio's testimony corroborated that of Ms. Alvarez's concerning the disciplinary meeting held on June 18, 2003, at which Petitioner was given the performance correction notice and counseled by Ms. Alvarez as to the company's expectations regarding her behavior. Petitioner's testimony as to the June 13, 2003, incident and its aftermath is not credible. On or about August 10, 2003, a personal conflict arose between Petitioner and a co-worker, Pierre Escanio. Petitioner loudly questioned the quality of Mr. Escanio's work. In the cleaning and packaging area, the workers' products were commingled into single lots and sent to Arthrex's quality control division for review. Petitioner claimed to be concerned that Mr. Escanio's poor work would cause quality control to return the entire lot, meaning that everyone would have to redo their work. Ms. Custodio, the supervisor, attempted to calm the situation by telling Petitioner that she would talk to Mr. Escanio about his work. Ms. Custodio did so despite the fact that she had trained Mr. Escanio and knew him to be a competent employee. Ms. Custodio next told Petitioner that she would separate Petitioner's work from that of Mr. Escanio, marking the items so they would know whose work had been rejected by quality control. Despite Ms. Custodio's effort, Petitioner continued to complain. Ms. Custodio finally told Petitioner to stop making these complaints in front of the other dozen or so people in the work area. Ms. Custodio believed that Petitioner was questioning her authority in front of the other employees. She went to Ms. Alvarez to discuss the situation and obtain the assistance of the Human Resources Department in addressing the problem of Petitioner's insubordination. Ms. Custodio told Ms. Alvarez that she could no longer handle the situation with Petitioner. In keeping with the policies of Arthrex's Human Resources Department, Ms. Alvarez investigated the matter, conducting interviews with employees who witnessed Petitioner's behavior. Ms. Alvarez testified that her investigation led her to conclude that "there was a serious problem in the department." After a final consultation with Arthrex's general counsel, Ms. Alvarez recommended that Petitioner's employment be terminated for insubordination. Ms. Custodio agreed with the recommendation. By letter dated August 12, 2003, and signed by Ms. Alvarez, Arthrex terminated Petitioner's employment. The letter stated the following express reasons for Petitioner's termination: Previous written warning referring to disruptive behavior of 6/17/2003. Numerous reports of negative comments about the company and management in front of other employees. Antagonistic behavior with supervisor and coworkers. Petitioner produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. Petitioner's chief claim is that she was terminated for refusing to obey instructions from her supervisors, including Ms. Custodio and Ms. Alvarez, to cease speaking Spanish in the workplace. Both Ms. Custodio and Ms. Alvarez credibly denied giving any such instructions to any Arthrex employee. Arthrex does have a "Language Policy" that requires employees to be proficient in English to ensure that FDA regulations and ISO certification standards are met, because the company "has determined that the English language is the most common and effective means of communications" in the United States. The policy requires employees to communicate business-related information in English, but states that it "is not intended to prevent or discourage any employee from speaking their native language at Arthrex for certain business related matters, on their own time or with regard to non-business matters." The evidence established that all but one or two people in Petitioner's work area were native Spanish speakers and that they were allowed freely to communicate in Spanish in their day-to-day work activities. Employees were encouraged to communicate with their supervisors in their native language, if doing so improved the quality of the information conveyed. Ms. Custodio and Ms. Alvarez each testified that they knew of no Arthrex employee who had ever been disciplined for speaking a language other than English in the workplace. At the hearing, Petitioner repeatedly made reference to the efforts of one lower-level supervisor, Renee Vanderberg, to force the employees in Petitioner's section to refrain from speaking Spanish and confine their work conversations to English. However, the evidence established that once the Human Resources Department learned of Ms. Vanderberg's actions, she was admonished to cease directing the employees to speak English. When Ms. Vanderberg continued to press the issue, Arthrex terminated her employment. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination were limited to those set forth in the termination letter of August 12, 2003.
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 Arthrex Manufacturing did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2005, 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 17th day of May, 2005.
The Issue Whether Respondent committed the unlawful employment practice alleged by Petitioner in her Employment Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") on May 3, 2016; and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the record as a whole and the evidence presented, the undersigned makes the following findings of material and relevant facts: Petitioner started her employment in July 2002 with Events by Premier. The company provides exclusive catering services for the Jewish Center in Aventura, Florida.3/ Petitioner's employment in 2002 followed her marriage to Michael Pollak, a co-owner of Events by Premier. Petitioner became a full-time employee in 2013 and was assigned to the position of kitchen manager. At that point, her husband was the chef and supervised her work in the kitchen. Their work relationship continued in this manner until she was terminated from employment in late July 2015. Petitioner's performance was satisfactory, and there was no evidence to suggest that she was unable to adequately perform her duties as kitchen manager. The evidence was largely undisputed that the position of kitchen manager was created specifically to accommodate Petitioner and her husband, a co-owner of the business. There had been no prior kitchen manager positions at Events by Premier, and the title and position were not needed to operate the business. Another owner of Events by Premier, and its president, was Steven Pollak. He is the brother of Michael Pollak and was Petitioner's brother-in-law. During the weeks leading up to her termination in July 2015, her relationship with her husband, Michael Pollak, became openly strained and tense due to marital problems. Steven Pollak described the work environment between Petitioner and her husband as not a good one, and it created, as he described, a "toxic" work environment. There was screaming, hollering, and profanity exchanged between Petitioner and her husband at work. It was decided that Petitioner needed to be terminated for the best interests of the company and also due to the unprofitability of the company in the first half of 2015.4/ As a result of the poor working environment existing between Petitioner and her husband, and Respondent's unprofitable performance in the first half of the year 2015, Steven Pollak informed Petitioner on July 26, 2015, that he was letting her go.5/ After she was fired, Petitioner filed a Complaint with FCHR. The basis of her Complaint was that she was terminated because of her "marital status." At the hearing, Petitioner explained her opinion regarding the basis for her termination. She felt that her termination occurred because the company feared that she knew things about the company, including improper unemployment claims and other financial information.6/ It was clear to the undersigned that Petitioner had serious emotional and relational issues with her husband that made it difficult, if not impossible, for her to work harmoniously with him. She testified at the hearing and characterized her relationship with her husband after her termination as "out of control." Based upon the evidence presented and the record as a whole, Petitioner was not terminated because of her "marital status." Rather, the evidence demonstrated that there were legitimate and non-discriminatory business reasons for terminating Petitioner. Similarly, her termination was based upon the hostile relationship which existed between Petitioner and her husband, Michael Pollak, in the weeks and months leading up to her filing a petition for divorce--not because of her marital status (e.g., not because she was married, separated, or divorced).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent's favor. DONE AND ENTERED this 4th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2017.
The Issue Whether Petitioner's suspension in March 2004 and subsequent dismissal in March 2004 were not, in fact, imposed in consequence of her gross insubordination (which insubordination Respondent allegedly used as a pretext for the adverse employment actions), but rather were in truth retaliatory acts taken by Respondent because Petitioner had filed a charge of discrimination against Respondent.
Findings Of Fact The Order Relinquishing Jurisdiction contained a statement of undisputed material facts, which provided as follows: A. [a.] [Petitioner Diane] Scott [("Scott")] was employed as a teacher's aide in the Monroe County Public School System for approximately 13 years. The [Monroe County School] Board [(the "Board"), which is the governing body of Respondent Monroe County School District,] suspended [Scott] without pay in March 2004 pending termination for just cause. Scott timely requested a formal hearing. [b.] On August 18, 2004, Administrative Law Judge Robert E. Meale of the Division of Administrative Hearings ("DOAH") conducted a formal hearing in DOAH Case No. 04-2060 to determine whether Scott's employment should be terminated. Judge Meale issued a Recommended Order on October 25, 2004, holding, on the basis of extensive findings of fact, that Scott had "repeatedly refused to obey direct orders, essentially to allow the school system to function as an educational resource, free from her harassment of other employees trying to do their jobs." Judge Meale recommended that the Board terminate Scott's employment for just cause, i.e. gross insubordination. [c.] On November 16, 2004, the Board entered a Final Order adopting Judge Meale's Recommended Order in its entirety. Scott did not appeal the Final Order. B. [d.] In November 2004, Scott filed with the FCHR and the EEOC a Charge of Discrimination, signed November 12, 2004 (the "Charge"), wherein she alleged that the Board had retaliated against her for having filed an earlier charge of discrimination. The Charge was received by the FCHR on or about November 22, 2004, and docketed as Charge No. 150-2005-00405. [e.] In the Charge, Scott stated the "particulars" of her claim against the Board as follows: I am black. I filed a charge of discrimination under 150-2004-00146. In retaliation, Respondent placed papers in my fie [sic] that pertained to someone else and papers that were not signed by me. In further retaliation, Respondent placed me on suspension. I believe all of the above occurred in retaliation for filing the aforementioned charge in violation of Title VII of the Civil Rights Act of 1964, as amended.[1] Scott also alleged that the unlawful retaliation took place between the dates of August 18, 2004, and August 24, 2004.2 [f.] . . . Charge No. 150-2004-00146 (the "Prior Charge"), which allegedly triggered the Board's allegedly retaliatory acts, had been brought against the Board in November 2003. . . . [To repeat for emphasis,] the retaliation claim asserted in the [present] Charge is based on alleged adverse employment actions that the Board took, allegedly, in response to Scott's filing the Prior Charge in November 2003. [g.] In her Charge Scott alleged that the Board's unlawful retaliation consisted of (a) placing papers in her personnel file that didn't belong there and (b) putting her on suspension. Regarding the allegedly spurious papers, . . . [f]ive . . . are . . . documents pertaining to another teacher's aide in Monroe County whose name is "Diane M. Scott." (Petitioner Scott is also known as Diane Hill Scott but not, so far as the record reveals, as Diane M. Scott.) The papers relating to the "other" Diane Scott are: (1) an Oath of Public Employee form dated December 20, 1996; (2) an Employer's Statement of Salary and Wages dated April 24, 2001; (3) an Employer's Statement of Salary and Wages dated March 13, 2002; (4) a Civil Applicant Response dated December 20, 1996, which notes that the individual (identified as "Diane Marie Scoh") had failed to disclose a prior arrest; and (5) a copy of the school district's anti-discrimination policy, apparently signed by the other Ms. Scott on August 23, 2002. [h.] In addition to these five papers, Scott claims that her personnel file contained an unsigned copy of the school district's anti-discrimination policy, bearing the handwritten note "Diane Hill Scott refused to sign——8/24/00." Scott asserts that before last year's administrative hearing, she had never seen this particular document. Because of that, she alleges, its presence in her file is evidence of discriminatory retaliation. [i.] Regarding the alleged retaliatory suspension [on which the Charge is based in part], Scott [actually] was referring to three separate suspensions: (1) a three-day suspension in May 2003; (2) a three-day suspension in October 2003; and (3) the suspension in March 2004 that was part and parcel of the proceeding to terminate Scott's employment. It is undisputed that Scott was in fact suspended from employment on each of these three occasions. However, [by] a letter to Scott from the Director of Human Resources dated October 3, 2003, [the Board had] formally rescind[ed], as the product of "error and miscommunication," the three-day suspension Scott was to have served that month. [j.] On April 26, 2005, the EEOC issued a Dismissal and Notice of Rights on Scott's Charge against the Board. In this notice, the EEOC stated that it was unable to determine whether the Board had violated Scott's civil rights. Thereafter, on May 12, 2005, the FCHR issued Scott a Right to Sue letter. Scott timely filed a Petition for Relief ("Petition") with the FCHR on June 6, 2005. The FCHR immediately transferred the Petition to DOAH, initiating the instant action. The undersigned hereby adopts the foregoing as findings of fact. Following the principle of estoppel by judgment (discussed in the Conclusions of Law below), it is found that, prior to being suspended from employment in March 2004, Scott repeatedly had refused to obey direct orders; she had been, in other words, grossly insubordinate at work. The evidence in the record is insufficient to persuade the undersigned——and consequently he does not find——that the Board used Scott's gross insubordination as a pretext for taking adverse employment actions, namely suspension and dismissal, against Scott. The evidence is likewise insufficient to establish, and thus it is not found, that the Board in fact suspended and discharged Scott in retaliation for filing the Prior Charge. It is determined, therefore, as a matter of ultimate fact, that the Board did not unlawfully retaliate against Scott when it terminated her employment on the ground that she had been grossly insubordinate, which misbehavior constitutes just cause for firing a teacher's aide, see §§ 1012.01(2)(e) and 1012.33(1)(a), Fla. Stat., and hence is a legitimate, non- retaliatory basis for taking adverse employment action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding the Monroe County School District not liable to Diane Scott for retaliation or unlawful discrimination. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006.
