Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER 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 30th day of April, 1992.
Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, 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 30th day of June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Constanza D. Scott, is a black female. She began employment with respondent, Wal-Mart Stores, Inc., d/b/a Sam's Club (Wal-Mart), on July 29, 1988, in its soft lines (men and women's apparel) department. The store is located in Tallahassee, Florida. She was a full-time employee and worked forty hours per week. Besides working full-time for Wal-Mart, beginning in August 1991 she worked "at least" twenty hours per week for Marriott Food Services at Florida State University, and she attended classes at an undisclosed Tallahassee college or university on Tuesdays and Thursdays from 1:30 p. m. until around 4:30 p. m. Petitioner's regular hours at Wal-Mart were from 5:00 a. m. to 1:00 p. m., Monday through Friday. From at least May 1991 until October 1991, her supervisor was Scott Cosby, an assistant store manager for the merchandising department. Cosby was replaced in October 1991 by Tim Strahan, Jr., who supervised petitioner until her termination on December 21, 1991. Wal-Mart refers to its procedure for handling disciplinary problems as performance coaching, and it involves a series of progressively sterner disciplinary measures taken against an employee. On the first occasion disciplinary action is warranted, the employee is given what is called verbal counseling. This type of action is not documented in writing and simply involves counseling by an employee's supervisor. If the problem persists, the employee is given a verbal warning, which is reduced to writing and placed in the personnel file of the employee. If a verbal warning does not result in the correction of the deficiencies, a written warning is issued, and the employee is required to prepare a responsive plan of action stating how the employee intends to correct the cited deficiencies. As a last resort, the employee is given a day off with pay, which is called a decision-making day, so that the employee can reflect on his or her performance and prepare a plan of action detailing how the deficiencies will be corrected. Thereafter, an employee is automatically terminated if further disciplinary action is required. On May 1, 1991, petitioner's supervisor (Scott Cosby) gave her a verbal counseling for "attendance problems." In response to this counseling, petitioner stated that she was very tired from school but would improve her attendance. On May 6, 1991, she was again cited for an "ongoing attendance problem." This is memorialized by a written verbal warning contained in her personnel file. On September 21, 1991, a second verbal warning was given by Cosby, this time for petitioner working overtime when Cosby apparently felt she could complete her work within the normal forty-hour week. Petitioner explained, however, that all overtime had been approved by the store manager. On October 7, 1991, Cosby again gave her a verbal warning for "not keeping up with 'basics of the business' consistently." In her action plan filed in response to this criticism, petitioner stated she would "do a better job of signing, cleaning, displaying, zoning and shrink wrapping," all specific duties of her job. During the week of November 11-15, 1991, petitioner was late to work every day. On one of those days, November 14, 1991, she telephoned an assistant store manager (Don Graves) and reported that her car would not start. She eventually came to work around 4:00 p. m. that afternoon. For her lack of punctuality, a written reminder was issued, which is the last step before decision-making day. On November 27, 1991, petitioner telephoned her team leader, Jennifer Christie, at 5:40 a. m. to say that her alarm clock had failed to go off and she would be late. Deciding not to accept any more excuses regarding her attendance and punctuality, Strahan, her supervisor since October, gave petitioner the day off with pay so that she could contemplate her future with the store. When she returned the next day, Wal-Mart agreed to accept petitioner's suggestion that her work hours be changed on Mondays, Wednesdays, and Fridays to 7:00 a. m. to 2:00 p. m., and on Tuesdays and Thursdays to 7:00 a. m. to 12 noon. This was done in order to accommodate her other work and school activities. The number of store employees at any one time is governed by the store sales. In other words, payroll (staffing) cannot exceed a percentage of current sales. In order to stay within the required percentage, a specified number of hours are allocated to each department within the store, and the department assistant manager determines how many employees can be employed within the allocated hours. When sales drop, workers are laid off, and when sales pick up again, Wal-Mart increases its work force. In December 1991, Wal-Mart was faced with a reduction in force due to declining sales. On a storewide basis, six part-time and three full-time positions were eliminated. In the soft lines department, which had four full-time and three part-time employees, a decision was made to eliminate one part-time and one full-time position in order to stay within the department's allocated hours. Strahan was charged with the responsibility of selecting the positions to be eliminated. In doing so, he was able to transfer Joyce Willis, a part-time black female employee, to the "front" since she had experience in operating a cash register. Of the four full-time employees, Jennifer Christie, the team leader and a white female, and Armie Brown, a black female, had seniority over petitioner, and neither had attendance or punctuality problems. In addition, Strahan considered both of them to be more "dependable" than petitioner. The third employee, Joe Watson, a white male, was an experienced fork lift driver for the store, and Strahan desired to retain him in that position. Although petitioner had been given some training in the operation of a fork lift, unlike Watson she had no actual on-the-job experience in that position. The only remaining full-time position was filled by petitioner, who had less flexibility in her work hours than the others due to requirements of school and her second job, and unlike the others, she had a record of disciplinary action during the preceding seven months for attendance and punctuality problems. For these reasons, Strahan selected petitioner's position as the full-time slot to be eliminated. Petitioner was called to a meeting with Strahan and the team leader on December 21, 1991. At that meeting Strahan told petitioner that he was forced to eliminate her full-time position due to a reduction in force caused by declining sales. Petitioner asked "why me?" and if there were any other full- time slots in the store to which she could be transferred. When Strahan replied there were none, petitioner said "you're full of shit, fuck you," and walked out of the office. Had she not departed, Strahan was about to offer her a part-time position. Because petitioner left the store, however, Strahan had no choice except to terminate her employment. According to petitioner's Associate Exit Interview form, which is prepared whenever a position is eliminated or an employee leaves, petitioner remains eligible for re-employment "when vacancies occur which the store needs to fill." She was unaware of this, however, and has never made application to be rehired. This is probably because she left the store before Strahan had an opportunity to have her sign the form and give her a copy. There is no evidence that petitioner's position was ever reestablished, and if so, whether it was filled by a person outside petitioner's protected class. Petitioner alleges that her position was eliminated solely because of her race. The evidence, however, belies that contention. Accordingly, it is found that petitioner's race played no role in the employment decision taken by respondent. Petitioner also contended she was a hard worker who did her assigned tasks, and she did not deserve the criticisms noted in her personnel file. For example, a minute or two after 5:00 a.m. the front door was locked and any late employees were then required to go to the back door of the store to gain entry to the premises. This added another ten or fifteen minutes for petitioner to reach her work station. Petitioner says this made it appear that she was fifteen or twenty minutes late when in fact she had been tardy by only a minute or two. Even so, by her own admission she was late on "numerous occasions," including every day during the week of November 11, 1991. She also complained that she did not get along with Cosby, a former supervisor, and denied that he twice counseled her for poor attendance in May 1991, as reflected in her personnel file. Even if petitioner's assertion is true, however, that employee left Wal-Mart in October 1991, which was before many of the relevant events occurred. While petitioner is to be highly commended for her work ethic (at least sixty hours per week plus school), the pertinent criticisms in her personnel file were substantiated and were properly taken into account by respondent in making its employment decision.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 28th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0318 Respondent: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 8. 4-5. Partially accepted in finding of fact 4. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 8. 12-16. Partially accepted in finding of fact 9. 17-19. Partially accepted in finding of fact 10. 20-21. Rejected as being unnecessary. 22. Covered in preliminary statement. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Constanza D. Scott 3250 West Tennessee Street, Lot 146 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether 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 be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission 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 9th day of July, 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 9th day of July, 2012.
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
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida. P MICHAEL RUFF 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 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
