The Issue Whether the Respondent, Reichhold, Inc., has committed an unlawful employment practice contrary to Section 760.11, Florida Statutes.
Findings Of Fact Respondent owns a chemical plant that produces resins, copolymers, polymers, alkyds, amines and hardeners, for various applications in paints and coatings. It is an equal opportunity employer. Its policy prohibiting discrimination is posted on the company’s intranet site, to which all employees have access. In order to produce its products, Respondent uses a variety of chemicals in its production process. The chemicals used in the plant are volatile substances which, if dealt with improperly, can cause explosions, flashes, or fires, endangering plant employees and the surrounding community. These chemicals are expensive, dangerous, and are subject to tight safety and environmental regulation. In addition, many of the products are created under heat and pressure conditions inside a closed mixing and/or distilling chamber known as a reactor or kettle. The reactors are connected in a production line by a system of pipes. Each reactor has a set of controls which allow the reactor to be opened and closed for the addition of chemicals to the reactor. Failure to close other reactors in the line can cause a chemical to be added to the wrong reactor. Respondent has developed a number of written procedures that operators must follow when mixing chemicals or performing certain tasks, such as cleaning the reactors products. Written procedures for operating a reactor are known as Standard Operating Procedures and are available at all times for operators to consult in performing their duties. Operators must also follow a recipe for a product known as a batch ticket. The batch ticket provides the formula for a given product, including quantities of specific materials, plus instructions on when and how to add chemicals to the mix to produce the desired product. If the responsible operator follows the batch ticket for a given product, the resulting batch of chemicals should meet all applicable quality standards for that product. If the operator does not follow the batch ticket, then the product will not meet quality standards. A non-conforming product can sometimes be salvaged by adding additional raw materials to bring it within product specifications. Such corrections increase the price of the batch. However, it is not always possible to salvage a non-conforming product. This results in a loss of raw materials and sometimes causes disruption in product delivery schedules and significant clean-up costs for the Respondent. Therefore, it is very important for operators to follow operating and batch ticket procedures precisely and to communicate immediately with their supervisors if they notice any problems with the batches they are working. The production system at the plant is continuously monitored by a computer system that logs actions taken by an operator for a line of reactors. The system also monitors the internal environment of the kettle such as temperature and pressure and sets off alarms when certain processes are not met. Inventory logs are also maintained by computer via operator input. Individual reactors are also monitored by the assigned operators. The United Steel Workers Union represents the operators at the Pensacola plant. The collective bargaining agreement between the union and Reichhold contains a non-discrimination clause. All employees in the unit, including Petitioner, have the right to file a grievance whenever they believe that the company has violated a provision of the collective bargaining agreement. Petitioner has not filed any grievance regarding any alleged discriminatory action discussed in this order. The union collective bargaining agreement also provides for the discipline of employees through a progressive disciplinary system. The progressive disciplinary system was instituted at the Pensacola facility in 2004 after consultations with the President of the United Steel Workers Union and eventually placed in the union contract. The policy defines four categories of misconduct: minor, major, severe, and termination. The category of “major misconduct includes “violation of product quality standards,” “violation of safety procedures,” and “activities that create product delivery problems.” The category of “severe” misconduct includes a “ mischarge or mispump” and a “misadjustment.” A “mischarge” occurs when the wrong material is added to a batch. After implementation of the progressive discipline policy, discipline began to be administered more frequently in the Pensacola plant. The increased level of discipline affected everyone regardless of race. The record contains 36 exhibits reflecting disciplinary actions issued to both white and black employees during and after 2004. Petitioner is a black male. Petitioner was hired by the Respondent at its Pensacola plant, on September 7, 1993. Petitioner was terminated from his job on April 3, 2006. At the time of his termination, he was 54 years old. Petitioner began his employment with Respondent as a laborer. He worked as a laborer until January 1994. In January 1994, Petitioner was promoted to a material handler position, also known as a “C” operator. The primary responsibility of a material handler is to load chemicals into the reactors. Petitioner held this position for approximately one year. Eventually, Petitioner was promoted to the position of an “A” operator and was an “A” operator at the time of his discharge. “A” operators are the highest level operators in the plant. The principal responsibility of an “A” operator is to monitor the reactors to which he has been assigned at the beginning of his shift. On October 22, 2004, Petitioner was working the night shift with two other operators, Ernest Anderson (African- American) and John Monti (White). Petitioner was assigned to monitor two reactors during his shift on October 22, 2004. Monitoring a reactor requires the operator to monitor the Johnson Yokagawa Control (JYC) system for any alarms or adverse conditions it detects in the reactors. All three of the operators on the night shift were responsible for monitoring the JYC system. During Petitioner’s shift on October 22, 2004, the temperature in one of the tanks tripped the alarm. The alarm was shut-off without any action being taken to address the issue of the elevated temperature in the tank. Over the next ten hours, the alarm continued to sound every ten minutes and was continuously manually silenced without any steps being taken to resolve the underlying problem that was causing the elevated temperature. When the day shift arrived, an “A” operator noticed the problem, immediately stopped the reaction and called an outside contractor to come in and repair a chiller that had broken and had caused the elevated temperature in the reactor tank. Had the overheating tank not been caught by the day shift employees, it could have exploded, causing major damage to the plant and the surrounding community. During most of the shift, but not all, Petitioner had been cleaning a filter on one of his reactors and was away from the room where the JYC system is housed. He, therefore, did not see or hear the alarm. Petitioner admits that he did not monitor the JYC system for both of his reactors throughout his shift as procedures require him to do. The company investigated the incident. None of the operators admitted to hearing or silencing the alarm. Because all three operators failed to respond to the alarm and because of the very serious potential consequences of their failure, Respondent issued a suspension for negligence to all three operators on duty during the night shift on October 22, 2004. There was no evidence that any other employee who failed to report a JYC alarm were not disciplined. The evidence did not demonstrate that Respondent’s disciplinary action was unreasonable or discriminatory. On March 17, 2005, Petitioner was responsible for adding VMP solvent to help cool product 16901-00, lot #217946, for the second stage reflux distillation. During this process, the disc in the reactor ruptured because of a build-up of pressure and temperature due to moisture entering the reactor. The JYC log showed that the pressure in the reactor had reached 25.24 psi and the column temperature had reached 125 C. As a consequence of the rupture, the sight glass gasket on the column was damaged and had to be replaced. As a result, Respondent incurred significant costs in repairing the blown disc and sight glass. These costs included the actual cost of the disc and the sight glass gasket. In addition, the reactor could not be operated during the repairs, which cost the company production time. Respondent also conducted an investigation of this incident. The investigation revealed that the decanter was found to be over half full of resin. Based upon the investigation, the JYC information and the nature of the chemical distillation process, Respondent concluded that Petitioner either: (1) did not control the cooling solvent for the second stage of cooling and caused a violent reaction that triggered an overflow and pressure build- up that resulted in the blown disc; or (2) failed to properly drain all of the water from the decanter before adding the VMP, which caused an overflow back into the reactor and the blown disc. Petitioner thought the water may have been in the solvent pipes used to pump the chemicals into the reactor. Under any scenario, Petitioner failed to follow the operating procedures for his reactor and he failed to take appropriate action to prevent the failure of a pressure relief device. On April 5, 2005, due to the progressive disciplinary policy and the serious nature of uncontrolled temperature and pressure build-ups in a reactor, Respondent placed Petitioner on a three-day suspension for negligence. The written notification given the Petitioner stated: “Any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” At the hearing, Petitioner was unable to specifically identify any other white or younger employee who blew a rupture disc and was not disciplined. Although Petitioner claims that other employees blew rupture discs, his knowledge is based on hearsay or speculation. The one instance that Petitioner was aware of occurred after Petitioner’s discharge, but prior to the hearing in this matter. In that instance a rupture disc blew on a reactor being operated by a white employee. However, the disc blew because the disc was faulty, not because of operator error. The disc was not supposed to rupture until ten pounds or more of pressure occurred in the reactor. According to the computer log, the disc ruptured prematurely at only 6.7 pounds of pressure. Because there was clearly no operator error no discipline was imposed. The incident is not comparable to Petitioner’s situation and there was no evidence that showed Respondent’s disciplinary action was unreasonable or discriminatory. On July 23, 2005, Petitioner was working with two “D” operators, Robert Atkins (African-American) and Ralph Davis (African-American), all of whom were responsible for a batch of 16827-00, lot 215786, a type of chemical that Respondent mixed for sale to a customer. During the process, Petitioner added too much Pentaerythritol Pure Mono to the batch causing a mischarge of the product. Later, Petitioner sampled the product and found that it was running high in acid value and was out-of-specification. He added glycerin to the reactor to try to bring the product back into specification. Petitioner’s action, however, was not sufficient to correct the problem and the product remained out- of-specification. In the end, the product could not be salvaged and two shipments to the customer were missed. Respondent conducted an investigation into this incident and concluded that Petitioner was responsible for the mischarge and had failed to follow the batch ticket recipe. Petitioner admitted that he was responsible for this mistake. Even though Petitioner could have been discharged under the progressive disciplinary policy, he was not. By disciplinary action issued on August 3, 2005, the company issued Petitioner a three-day suspension for negligence. The written notification received by Petitioner again stated: “any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” The two “D” Operators, who were substantially younger than Petitioner, received final written warnings for the same incident. Final written warnings are lower levels of discipline under the progressive disciplinary policy. They received less discipline because it is ultimately the "A" operator’s duty to ensure the correct material is charged into the reactor. There was no evidence of any other employees who committed mischarges and who were not disciplined. On the other hand, there was evidence that Respondent has disciplined white operators for similar mistakes. For example, on January 25, 2006, Doyle Caudell was responsible for a mischarge to reactor number two. Like Petitioner, he was issued a three-day suspension for the mischarge. There was no competent evidence that the discipline imposed on Petitioner was unreasonable, discriminatory or pretextual. On June 25, 2005, Petitioner was responsible for batch 16070-00, lot 239480. During his shift, Petitioner mistakenly entered 1,919 pounds of castor oil, code 4016 to the company’s inventory tracking system known as "SAP." The amount that should have been entered was 2,919 pounds of castor oil that he actually used in the production process. One of the responsibilities of an “A” operator is to accurately enter all raw materials into the company’s computer system to ensure other Reichhold employees order the necessary supplies for upcoming production needs. Because of Petitioner’s error, the company’s inventory showed that it had 1,000 more pounds of castor oil than it actually possessed. Petitioner’s error was not discovered until August 8, 2005, when Respondent planned to mix another batch of 16070-00. The company did not have enough castor oil on hand to mix the batch. As a result, Respondent was forced to delay production of 16070-00, until enough castor oil could be delivered to the plant. On August 18, 2005, Petitioner was not discharged, but issued a final written warning for negligence. The disciplinary notice again stated: “any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” The evidence showed that Respondent has disciplined a white operator for the same type of mistake. Jimmy Dickens received a one-day suspension for transposing numbers on a calculation which shorted inventory and created an off specification batch. There was no evidence that Respondent’s disciplinary action was unreasonable, discriminatory or pretextual. On March 17, 2006, Petitioner was responsible for the production of batch 16827-00, lot 309864 in Reactor 7(R7). During the processing and sampling of the product, Petitioner found that it was running high in acid value. He added two 700 pound hits of glycerin to the reactor to try to bring the product into specification. The product, however, could not be saved and was placed into storage until the company could prepare a plan to try to salvage the materials. While Petitioner was working on his batch of 16827-00 in R7, a batch of 16406, lot 309785 was processing in Reactor 1 (R1), a different reactor on the same line as R7. During the sampling of R1 batch, it was observed to be running low on viscosity and acid value. As a result, 2,421 pounds of Phthalic Anhydride was added to R1 to bring batch 16406 back into specification. Respondent investigated the problem. The computer log showed that Petitioner had logged that he added 2,393 pounds of glycerin to R7. However, Respondent tested the Hydroxyl values of both batches (16827-00 and 16406) which did not corroborate the addition of the glycerin to R7. The process information (PI) data showed a drop of 17 degrees in R1 during the time the glycerin was supposed to be cooling R7, showing that the glycerin had been charged or fed into the wrong reactor on the line. The only way the glycerin was able to enter R1 was because Petitioner failed to close the glycerin valve on R1 prior to attempting to pump the glycerin into R7. Thus the glycerin flowed into R1 instead of R7. Within the 18-month period prior to his discharge, Petitioner had engaged in conduct prompting three suspensions and a final written warning. Based upon Petitioner’s mischarge on March 17, 2006, and his prior record of negligence in performing his duties, Respondent terminated Petitioner on March 30, 2006. There was no evidence of any other employees with five similar disciplinary actions within an 18-month period that were not discharged. Petitioner was replaced by Phillip Nared (Black). Mr. Nared voluntarily resigned after 120 days and was replaced by Jason McGruder, also Black. Petitioner testified that Terry King caused a spill from a monomer tank and was not disciplined. Terry King is a White A operator at the Pensacola plant. However, Petitioner does not know when the alleged spill occurred, and did not witness Terry King engage in any conduct that caused the spill. Rather, Petitioner walked up on the spill after it had already occurred. All of Petitioner’s knowledge regarding this incident is based on either speculation or hearsay. Petitioner did not present any other evidence corroborating his allegations regarding Terry King. Therefore, this evidence is inadmissible and insufficient as comparator evidence. Moreover, Petitioner introduced no other competent evidence about Mr. King’s disciplinary history or other alleged incidents he was involved in for which he received no discipline. Therefore, no meaningful comparison of the disciplinary histories of Mr. King and Petitioner can be made. Petitioner also testified about David Blair. David Blair is a white A operator at the Pensacola plant. Petitioner contends that Mr. Blair also caused a spill from the monomer tank. However, the spill was caused by faulty equipment. As with Mr. King, Petitioner did not see Mr. Blair engage in any conduct that caused the spill. Rather, he saw the spill after it had already happened and was unaware of its cause. Therefore, Petitioner’s evidence of Mr. Blair’s alleged involvement in the spill is not based on his own personal knowledge but rather is speculation. Again, Petitioner introduced no evidence about Mr. Blair’s disciplinary history or other alleged incidents he was involved in for which he received no discipline. Therefore, no meaningful comparison of the disciplinary histories of Mr. Blair and Petitioner can be made. Doyle Caudell is another white A operator at the Pensacola plant that Petitioner felt received more favorable disciplinary treatment than he did. Petitioner contends that Mr. Caudell was not disciplined for (1) and alleged mischarge to the monomer tank; and (2) a flash fire incident in May 2005. Petitioner learned about the alleged mischarge to the monomer tank based on a statement from Carl Martion who was repeating an alleged statement from Doyle Caudell. Petitioner introduced no other evidence regarding this alleged mischarge. Consequently, it is based on uncorroborated hearsay and is not as comparator evidence. Similarly, Petitioner was not working when the flash fire incident occurred, and again, his knowledge of the incident is based on uncorroborated hearsay. Respondent investigated the flash fire incident. The incident occurred when a reaction inside a reactor caused the reactor to “flash” while two operators, one of whom was Doyle Caudell, were in the process of charging (loading) the reactor. The force of the flash knocked one of the operators backwards, causing injury to the operator. Respondent concluded that the flash fire was not caused by operator error but rather by a faulty nitrogen valve and faulty procedures regarding when to apply heat to the reactor. The company changed its procedures after the incident to specify that heat should not be applied to the reactor during the charging process. As a result of the investigation, the operators were not disciplined for the incident. Respondent concluded that Mr. Caudell did not violate any operating procedures and was not responsible for the flash fire. Petitioner introduced no competent evidence to rebut the Company’s conclusion that the flash fire was caused by faulty equipment and procedures. Petitioner testified that he was trained by Respondent that heat should never be applied to a reactor while loading chemicals because the pressure created by the added heat could cause the chemical being added to “blow back” out of the reactor. However, the evidence showed that this “Procedure” was not consistent or in place for all types of batches made by the Pensacola plant. Such procedures varied depending on the product being made. Therefore Petitioner’s testimony is insufficient to overcome the data records maintained by the Respondent for the batch that caused the flash fire. Moreover, Mr. Caudell’s disciplinary history was not comparable to Petitioner’s record. In the same 18-month period, Mr. Caudell only received two disciplinary actions. Thus, even if Mr. Caudell had been disciplined for the flash fire incident, his disciplinary record still would not have been as extensive as Petitioner’s record. Petitioner also testified that in June 2006, Jimmy Dickens (white) falsified company records. Again Petitioner was not present during the time of the alleged falsification. The evidence showed that Mike Weaver, Mr. Dickens supervisor, suspected Jimmy Dickens of falsifying company records. The records did not affect safety or production issues. Mr. Weaver investigated but did not find sufficient evidence of falsification and did not feel comfortable with drawing a formal conclusion that Mr. Dickens had, in fact, falsified records. Therefore, Mr. Weaver verbally counseled Mr. Dickens and documented the incident in Mr. Weaver’s own files. There was no evidence that Mr. Weaver’s actions were unreasonable or that Mr. Dickens alleged falsification was similar to Petitioner’s actions. Likewise, this one incident does not support a finding of preferential treatment for white employees over black employees. Lastly, in 2006, Respondent terminated Jimmy Dortch, a white manager who was over 40 for poor performance. Petitioner offered no competent evidence on the issue of age discrimination and the evidence does not demonstrate that Petitioner was discriminated against or that Respondent’s disciplinary actions were a pretext to cover up discrimination. Therefore the Petition For relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2007. COPIES FURNISHED: R. John Westberry, Esquire 1308 Dunmire Street, Suite B Pensacola, Florida 32504 Gretchen W. Ewalt, Esquire Ogletre, Deakins, Nash, Smoke and Stewart, P.C. 2301 Sugar Bush Road, Suite 600 Raleigh, North Carolina 27612 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 Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
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 the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, 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 The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
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 dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2007. COPIES FURNISHED: 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 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.
Findings Of Fact Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay. Petitioner apparently declined the position. When she did so, Respondent terminated her. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989. COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Latricia W. Dukes 4189 Tatum Street Orlando, FL 32811 Gale Brandy Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Phillips is a person of the masculine sex. He was employed as a maintenance foreman at Respondent Martin Stables South, Inc. (Martin Stables), of Reddick, Florida, from May 19, 2005, until June 27, 2005. Edmund Martin is the president of Martin Stables. He is also the only stockholder. Mr. Martin is aware of the number of employees working at Martin Stables. He testified that Martin Stables had less than 15 employees during the period May 19, 2005 to June 27, 2005. Moreover, he testified that Martin Stables never employed 15 or more employees in the current year, or in the year preceding May 19, 2005. He further stated that Martin Stables had never employed as many as 15 employees at any given time. Mr. Phillips provided no evidence contradicting this assertion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations dismiss the Petition. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John L. Phillips Post Office Box 771011 Ocala, Florida 34477 David A. Glenny, Esquire Bice Cole Law Firm, P.L. 1333 Southeast Twenty-Fifth Loop Suite 101 Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
