The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of his age.
Findings Of Fact Respondent produces flexible packaging, develops technology to fill that packaging with liquids, and provides services to incorporate its flexible packaging systems into its customers' facilities. Respondent primarily produces "bag-in- box" products and manufacturing systems for customers such as Pepsi-Cola and Wendy's, as well as various customers in the milk, juice, and chemical business. Respondent operates two manufacturing facilities, one located at its headquarters in Romeville, Illinois, and another located in Union City, California. Petitioner was born on April 24, 1946. In 1996, Respondent hired Petitioner as a sales representative, and he served in that position until he was discharged on April 19, 2004. Petitioner initially was assigned to service the Upper Midwest Region and was based in Chicago, Illinois. In 1999, Respondent reassigned Petitioner to the Southeast Region. After his reassignment to the Southeast Region, Petitioner continued to live in the Chicago area for several years. However, in December 2002 or January 2003, Petitioner and Respondent mutually agreed that Petitioner would relocate to Florida. Because the move resulted from a mutual decision between Petitioner and one of Respondent's founders, Respondent paid $25,000 towards Petitioner's moving expenses. After the move, Petitioner continued to be responsible for the same geographical territory and the same customers as before the move. Joe Pranckus is Respondent's vice president of sales. At the time of Petitioner's discharge, the sales department consisted of a customer service department and four geographical sales territories: the Central, Western, Eastern and Mexico Regions. The Central and Western Regions (where Respondent's manufacturing facilities are located) each were overseen by a regional manager. The Eastern and Mexico Regions did not have regional managers. As Petitioner was located in the Eastern Region, Mr. Pranckus served as his direct supervisor. From 1999 until his dismissal, Petitioner was Respondent’s only sales representative in the Southeast. His primary responsibility was to maintain and increase Respondent’s business in that region of the country. The Rapak sales department as a whole is generally responsible for maintaining and increasing Respondent’s overall sales. This involves not only selling products and services, but also following up with customers to help them solve problems and otherwise to ensure their happiness. Because his primary responsibility was maintaining and increasing sales, Mr. Pranckus judged Petitioner almost exclusively by his year-to-date sales numbers as compared to the same period in the previous year. These numbers were calculated by Mr. Pranckus on a fiscal-year basis, from May 1st through April 30th. For the 2003-2004 fiscal year, Mr. Pranckus established a goal for Petitioner of 15 percent growth in sales. The minimum expectation was that Petitioner maintain at least the same amount of sales he had the previous year. During the 2003-2004 fiscal year, Mr. Pranckus e- mailed Petitioner his sales-versus-last-year figures on almost a monthly basis. By the end of June 2003, Petitioner had sold only 84 percent as much as he had sold through June 2002; by the end of July, only 87 percent as much as he had sold through July 2002; by the end of August, 91 percent; September, 81 percent; October, 90 percent; November, 85 percent; December, 87 percent; and by the end of March 2004 (eleven months into the fiscal year), he had sold only 88 percent as much as he had sold through the first eleven months of the 2002-2003 fiscal year. In short, as the fiscal year drew to a close, it was clear that Petitioner was going to suffer a net loss of business for the year. In late October 2003, Petitioner suffered a heart attack and underwent triple bypass surgery. Petitioner was unable to work for approximately two months while recovering from surgery. However, Petitioner returned to work in January 2004, initially working on a limited basis. Petitioner's sales numbers suffered because he lost some certain accounts owing to factors beyond his control (such as product quality and price issues). Nonetheless, Petitioner concedes that it was his job to replace his lost sales, no matter what caused his customers to switch suppliers. Mr. Pranckus typically holds one sales meeting each year for his entire staff. In February 2004, Mr. Pranckus held one of those meetings. At that meeting, Mr. Pranckus informed Petitioner that "changes would be made if [his] numbers didn't improve." In his application for unemployment compensation, Petitioner stated that Mr. Pranckus also warned him on March 10, 2004, that he needed to improve his sales numbers. Finally, Mr. Pranckus sent an e-mail to Petitioner on March 27, 2004. In that e-mail, Mr. Pranckus delivered the following written warning: Your territory is at a critical state. We can not continue along this path. Sales must be improved immediately or we will need to change. We agreed at our sales meeting to get this back on track. It is not showing up in the numbers and activity. Call me and let me know how we can help. On April 19, 2004, Mr. Pranckus discharged Petitioner because of his poor performance. His year-to-date sales figures were unacceptably low, as compared to the previous year, and Mr. Pranckus saw no evidence of plans or activity designed to improve matters. After Petitioner was discharged, he filed an application for unemployment compensation. On the application, Petitioner stated that he was discharged “for failure to achieve sales goals.” Later in that same application, in response to a request to “briefly summarize your reason for separation from this employer,” Petitioner wrote: “I did not achieve my sales goals.” Petitioner did not assert anywhere in his application for unemployment benefits that he was discharged because of his age. At the time of his discharge, Petitioner was 57 years old (almost 58). Mr. Pranckus did not know Petitioner’s exact age, but he would have guessed (based on physical appearance) that Petitioner was in his mid-50s at the time. Mr. Pranckus did not consider this to be “old.” In fact, Petitioner is not much older than Mr. Pranckus. Mr. Pranckus interviewed three individuals to fill Petitioner’s position. He ultimately selected Jim Wulff. Mr. Pranckus did not know their ages at the time of the interviews, but he would have guessed (again, by appearance) that Mr. Wulff was in his mid-50s and that the other two interviewees were in their mid- to late 40s and mid- to late 50s, respectively. In fact, Mr. Wulff was born on May 26, 1948, so he was 55 years old (nearly 56) when Mr. Pranckus hired him. Sales analysis from June 2003 showed that eight Rapak employees or representatives did not meet the 100 percent sales goal. Those listed were either Rapak non-supervising employees with direct responsibility for sales, supervising employees, or non-employee independent brokers. However, none of these employees, whether younger or older, was similarly situated to Petitioner at the time of his discharge. As an initial matter, there were four other non- supervisory employees with direct responsibility for sales: Dennis Hayes, Marvin Groom, Donald Young, and Keith Martinez. The other individuals responsible for sales were either supervisory employees or non-employee independent brokers. Because the two supervisors have management responsibilities and are responsible for their entire regions and the individuals who report to them, they are not judged primarily by whether they personally meet the 100 percent or 115 percent sales-versus- last-year objectives. Brokers, meanwhile, are not employees. Rather, they are independent contractors paid on a straight commission, so Respondent receives value from their services regardless of how much they sell. Mr. Hayes was the only other employee who performed the exact same job as Petitioner, but he reported to Regional Manager Dan Petriekis in the Central Region, not directly to Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold 127 percent as much as he had during the same period the previous year.1 Mr. Hayes is almost ten years older than Petitioner. Mr. Young was also responsible for sales, but he was semi-retired, serviced only one customer and received a base salary for his work. As of March 2004, however, Mr. Young had sold 115 percent as much as he had during the same period the previous year. Mr. Young is more than twelve years older than Petitioner. Finally, while Keith Martinez and Marvin Groom had some responsibility for sales, their positions were “radically different” from Petitioner’s. Whereas Petitioner could identify certain problems with Respondent’s machinery and products and would refer those problems to a service technician to assist his customers, Mr. Groom and Mr. Martinez were both originally hired as service technicians. Based on this experience, they could and did not only identify technical problems, but also performed the necessary maintenance and repair work on the spot, in addition to performing preventative maintenance. Petitioner, by contrast, has spent his entire working life as salesman. Accordingly, he was neither capable of, nor expected to, perform these additional maintenance and repair functions. As a result, Mr. Groom and Mr. Martinez received more leeway on their sales performance than Petitioner because they brought additional value to Respondent’s business that Petitioner could not offer. Nonetheless, as of March 2004, Mr. Groom was running at 100 percent versus the prior year and Mr. Martinez was running at 87 percent. Mr. Groom is roughly three years younger than Petitioner, and Mr. Martinez is 15 and one-half years younger than Petitioner. Respondent paid Petitioner $113,000 in salary and commissions during his last full calendar year of employment with Rapak. Petitioner was out of work for ten months after his dismissal. During that time, he received $8,000 in unemployment compensation from the State of Florida and $8,942.33 in severance pay from Respondent. In his new job, Petitioner projects that he will earn $100,000 in his first year but admits that he could make at least $113,000 because his compensation is once again dependent upon sales commissions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2006.
The Issue The issue for determination in this case is whether Respondent violated Chapter 760, Florida Statutes, as alleged, by its refusal to allow Petitioner to rescind a resignation.
Findings Of Fact Ardie Collins, a Black female, lives in Rockledge, Florida, and is currently self-employed as a beauty salon owner. She began working for the State of Florida in 1973, as a salon inspector with the Cosmetology Board. She maintained her title of investigator and continued employment after reorganization with the Department of Occupational and Professional Regulation and the Department of Professional Regulation (DPR), as the agency is now known. During the relevant period Ms. Collins worked out of the DPR Regional Office in Orlando. In August 1982, Ms. Collins was terminated by DPR. The case went to arbitration, and by order of the arbitrator dated December 17, 1982, she was reinstated with full back pay. She reported back to work on February 10, 1983. In January 1983, before she reported back to work Ms. Collins went to see the AFSME union representative, Eric Tait, in Cocoa. The union had represented her in the 1982 proceeding and Tait had assisted the union. In that January meeting, two letters were drafted, later typed by a clerk and signed by Ms. Collins. These letters were characterized by both Ms. Collins and Eric Tait as "intent to resign" and a letter of resignation. The "intent to resign" is dated, in error, January 12, 1982, and is addressed to Howard Kirkland, Personnel Officer. It provides, This is to inform you that it is my intention to submit my resignation from State Employment, effective June 6, 1983. This resignation is now held by Eric D. Tait, AFSME President, Local 3040. (Petitioner's Exhibit #2) The second letter is dated June 6, 1983, is also addressed to Howard Kirkland, and provides: Kindly accept this as my resignation as Investigator with the Department of Professional Regulation effective June 6, 1983. The Department of Professional Regulation has informed me that as of June 6, 1983 I will have completed 10 years creditable service in the Florida Retirement System. (Petitioner's Exhibit #11) The first letter was mailed to DPR in Tallahassee and the second was held by Eric Tait. The January 12th letter was stamped received in the DPR Personnel office on January 24, 1983. Howard Kirkland took this letter to be a resignation. He discussed it with the Division Director and with the Assistant Secretary and was authorized to accept the resignation. He then sent a letter to Ardie Collins, dated January 25, 1983, stating: Please be advised that we have accepted your resignation from employment with this agency effective June 6, 1983. (Petitioner's Exhibit # 3) Later, on January 31, 1983, in response to a contact from Eric Tait, James Kirkland sent a letter to Ms. Collins explaining that, if necessary, her date of resignation would be extended to insure that she had the necessary ten years of creditable service. DPR commenced advertisement and recruitment to fill the anticipated vacancy. Sometime in early May 1983, Eric Tait mailed the second letter dated June 6, 1983. The letter was stamped received in the DPR Office of Personnel on May 5, 1983. On May 6, 1983, Ms. Collins wrote to Howard Kirkland informing him: Notice is hereby given that proposed or intended resignation is cancelled until further notice. (Petitioner's Exhibit #7) Between January and May, DPR received no word from Ms. Collins or her representative about her resignation. Kirkland again discussed the matter with his supervisor and responded by letter to Ms. Collins dated May 25, 1983, that her voluntary resignation had already been accepted in good faith. (Petitioner's Exhibit #8) There is no written policy or rule at DPR regarding the rescinding of resignations. The agency follows the general personnel management principle that until the resignation is accepted, withdrawal is negotiable; after acceptance, withdrawal is solely within management prerogative. Generally it is considered bad personnel management to permit an employee to rescind a resignation once it is accepted, and in particular, once the position is advertised. Ms. Collins claims that DPR has allowed other employees, white males and females, and black males, to rescind resignations. In his personal knowledge, and after reviewing DPR personnel files, James Kirkland found one individual who was allowed to rescind a resignation - a clerk, who had given probably only an oral notice and shortly later asked to withdraw it. In that case, nothing had been done to act on the resignation. The individuals named by Ms. Collins: Robert Fleming, Edward Bludworth, and Will Merrill, were not allowed to rescind resignations. Rather, they each reapplied after leaving DPR. Each was hired again on probationary status. Ms. Collins claims that she reapplied by mail to DPR sometime in late June 1983. However, neither the Tallahassee office nor the Orlando regional office have a record of her application. If she had reapplied for a vacant position, she would have been considered with the rest of the applicants. DPR has received resignations from employees in a variety of forms and in various ways. Sometimes resignations are submitted directly to an immediate supervisor; other times they are directed to the personnel officer. It is not uncommon to have a resignation expressed as an "intent to resign". DPR acted in good faith and consistent with established personnel practices when it accepted Ms. Collins' letter dated January 12th as a resignation and when it refused to allow her to rescind that resignation when requested some four months later. DPR determined that Ms. Collins had obtained her ten years of service as of June 6, 1983. This was the only condition regarding her date of resignation of which it was on notice. The agency received both the "intent to resign" and the "resignation" letter prior to receiving Ms. Collins' "cancellation". The agency simply ratified its acceptance in its response to Ms. Collins.
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue Whether the Respondent engaged in an unlawful employment practice contrary to Chapter 760, Florida Statutes, by discharging the Petitioner?
Findings Of Fact The Petitioner, Loreal Bailey, is an African-American woman who was employed as a cashier by the Respondent. One of the tasks that the cashiers were required to do was make a count of their registers at the end of their shift and "drop" the receipts, the cash, and their count of their cash drawer into a safe. The cashier did not have access to the safe. Cashiers were not supposed to let any other employee handle their deposit. On or about January 7, 2003, the Petitioner was on duty, and, at the close of her shift, she was being assisted in closing out her tour by another employee, who helped her count her money. The other employee, Hattie Killingsworth, an African-American woman, dropped Petitioner's package containing the receipts, the cash, and her count of the cash drawer into the safe. A subsequent accounting of the deposits revealed that $400 was missing from the Petitioner's "drop." The Respondent discharged the Petitioner shortly after this incident on January 13, 2003. Killingsworth was also terminated at this time. Both women were terminated for failing to follow company procedures that prohibited an employee from handling another employee's money. The matter was reported to the local sheriff's office; however, no charges were brought. Testimony by the Respondent's managers revealed that the money was most probably taken by a management employee of the company who was video-taped shutting off the security cameras prior to a period when money went missing. Money was missing on more than one occasion. It was surmised by management that this employee had found a way to access the safe. When this employee was terminated, the losses stopped. The general manager, Richard Eschenbacher, testified that the policy of not letting an employee touch another employee's money was not only to protect the employees, but to permit employees to testify about chain of custody of moneys if there were problems. The actions of Killingsworth and Bailey prevented Bailey from being able to testify that she had counted and deposited the money without interference from anyone else. Such testimony is helpful in prosecutions when a thief is caught, and a conviction without such chain of custody evidence is difficult to obtain. The Petitioner presented no evidence showing that the grounds presented by the Respondent for her discharge were pretextual.
Recommendation Based upon the foregoing findings of law and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petitioner's complaint. DONE AND ENTERED this 13th day of July, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 13th day of July, 2004. COPIES FURNISHED: Loreal Bailey 621 Smith Road Monticello, Florida 32344 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lorraine Maass Hultman, Esquire Kunkel, Miller & Hament Orange Professional Centre 235 North Orange Avenue, Suite 200 Sarasota, Florida 34236 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's race.
Findings Of Fact Ms. Gainey is an African-American and is currently unemployed. She has a tenth-grade education and at the time of the hearing was 31 years of age. Winn Dixie is a corporation engaged in the grocery business. It is headquartered in Jacksonville, Florida, and has stores throughout the southeastern United States. Winn Dixie is an employer as that term is used in Subsection 760.02(7), Florida Statutes. Beginning in 1996, Ms. Gainey began employment more or less continuously in Winn Dixie stores. In 2005, she was working in Winn Dixie's Port Orange Store. She began her Winn Dixie employment by working as an overnight stocking clerk and then worked in the bakery department. In time she became a general merchandise stocking clerk. Eventually she was promoted to cashier. Subsequently, she was promoted to front-end manager and her responsibilities increased. She was also asked to be an in-store trainer, and she accepted this additional duty. She trained newly hired cashiers and baggers. Ms. Gainey did an excellent job as front-end manager and was such a proficient in-store trainer, that she was asked on occasion to train personnel at other Winn Dixie stores. She was a popular manager. Both her peers and supervisors believed her to be a good employee. At least one Winn Dixie customer testified that at the Port Orange store she was, "Miss Winn Dixie." Training at Winn Dixie had been accomplished at individual stores prior to 2005. Accordingly, there was no standardization. Management at Winn Dixie determined that training should be accomplished regionally so that uniformity could be established. Winn Dixie thereafter established a pilot program in the Jacksonville region, which included Ms. Gainey's store, that would develop specialized district trainers who would be responsible for training all new hires. Winn Dixie issued a "job posting notice" dated March 23, 2005, through March 25, 2005, announcing the job title of "District Trainer 'New Hire Orientation & Cashier Training.'" The notice stated that the position would be responsible for conducting, "training sessions to support the delivery and dissemination of company-wide operational information, job-specific requirements, performance standards, human resource programs and policies, as well as pertinent safety program guidelines." The skills set for an in-store trainer were not transferable to the district trainer position. The district trainer position being contemplated was much more demanding and required intensive training. The position of district trainer would result in a promotion and an increase in salary for Ms. Gainey if she attained it. Consequently, she applied for it. Others did also. In the region in which Ms. Gainey was working, 50 people applied for 21 available positions. Ms. Gainey was selected for an interview. Winn Dixie managerial employees Catherine Cole, Gary Lloyd, and Mathew Toussaint interviewed Ms. Gainey and all of the other applicants. Sixteen applicants were chosen for training as district trainers. Five were black and 11 were white or Hispanic. One person was selected from each district. Ms. Gainey was not selected. Nevertheless, Ms. Cole recommended that Ms. Gainey attend training, and Ms. Cole and Mr. Toussaint overruled the recommendation of the interview board and determined she should attend training. This occurred because of the recommendation of her co-manager, who asserted that her presentation skills were "awesome" and because no one else from her district had applied. Ms. Gainey was informed that she was to participate in the training. Despite Ms. Gainey's belief to the contrary, she was never given a job as district trainer. Rather, she was informed that upon successful completion of training she might be placed in that position. Regrettably, and erroneously believing she had received a promotion, Ms. Gainey bade a tearful farewell to her fellow workers. They threw a going away party for her. The training commenced in Orlando, Florida, on Monday, May 9, 2005, and was scheduled for five days. During classes, Ms. Gainey did not absorb the information provided to her, gave inappropriate responses to questions, did not follow instructions, demonstrated that she could not follow along in the training book, and asked questions not related to the material. Her efforts were such as to evoke ridicule from her fellow students. Her demonstrated deficiencies resulted in a determination that she was unsuitable to be a district trainer. Of the six African-Americans that underwent training, all but Ms. Gainey, were successful. Of the ten whites, all were successful. The one Hispanic was successful. Ms. Gainey departed the training site convinced that she had successfully completed the course. However, a few days later she was informed by Ms. Cole, Mr. Toussaint, and John Koulouris that she had failed the course and would not be promoted. The decision not to promote her was solely based on her performance at the training and was not in any way based on her race. She was a valuable Winn Dixie employee and management wanted her to succeed. Winn Dixie was committed to working with her so that she could develop her skills and eventually advance. She was informed of this. Ms. Gainey, upon learning of her failure, became very emotional. She was offered an opportunity to return to her old job or, should she choose, a job anywhere in the district. Ms. Gainey refused to return to the Port Orange store because she did not want her co-workers to learn of her failure. Ms. Gainey asserted that she wanted to work in Gainesville, so she was assigned to Store 160 in Gainesville. Subsequently, she learned that Store 160 was slated to be closed, and she was allowed to return to her old store. However, she went on sick leave instead and never returned to work for Winn Dixie. She was terminated on May 13, 2006, due to her uncommunicative absence. The job to which Ms. Gainey aspired was never filled. Winn Dixie, within a matter of months, determined that the district trainer plan was not sound and terminated the entire program. Winn Dixie has a strong equal opportunity policy. No evidence was adduced during the course of the hearing that indicated that any action taken in regard to Ms. Gainey was based on discrimination. To the contrary, the evidence clearly demonstrated that Ms. Gainey was not placed in the position she desired because she was not qualified.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of June, 2007, 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 4th day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Princess Catrice Gainey Post Office Box 290264 Port Orange, Florida 32129 Tishia Green, Esquire Constangy, Brooks & Smith, LLC 100 North Tampa Street, Suite 3350 Post Office Box 1840 Tampa, Florida 33601 Princess C. Gainey 500 Southeast 18th Street Apartment 67 Gainesville, Florida 32641 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue The issue in this case is whether Respondent, Gulf Coast Enterprise (GCE), discriminated against Petitioner, Terry R. Douglas, based on his race--African-American--or his disability-- hearing impairment.
Findings Of Fact Petitioner, Terry R. Douglas (Douglas) is an African- American male. He is hard of hearing and uses hearing aids (when he can afford the batteries) and relies upon interpretive sign language when it is available.1/ At all times relevant hereto, Douglas worked as a food line server under the employ of GCE, which is a division of Lakeview Center, Inc., an affiliate of Baptist Health Care. The stated purpose of GCE is "to operate a successful business which will provide meaningful employment to persons with disabilities in accordance with the requirements of the AbilityOne Program." AbilityOne is a program that creates jobs and training opportunities for people who are blind or who have other severe disabilities, empowering them to lead more productive and independent lives. GCE is an equal opportunity employer and does not discriminate on the basis of race, color, national origin, religion, gender, age, marital status, disability, or any other category protected by law. Douglas had been previously employed by GCE in 2010 as a custodian but voluntarily resigned to pursue employment elsewhere. He briefly took a job in the Orlando area, then went to Memphis for about one year. When he returned to Pensacola he took a position with GCE commencing May 9, 2013, in the food service division. He was hired to work the night shift, from 7:00 p.m., until approximately 1:30 a.m. As part of being hired anew by GCE, Douglas filled out an "Employee Self-Identification Form" in order to advise GCE of his status within a protected class. Douglas identified himself as an individual with a disability but stated that there were no accommodations which GCE needed to provide in order to improve his ability to perform his job. When Douglas recommenced employment with GCE in May 2013, he went through employee orientation. He received copies of the Employee Handbook and various written policies addressing issues such as discrimination, harassment, drug-free workplace, etc. He was also provided training on the GCE Code of Conduct and Respect in the Workplace policies. Douglas' job entailed preparing and/or serving food at the cafeteria in Building 3900 at the Pensacola Naval Air Station (NAS). He was by all accounts a good employee, a hard worker, and gained the respect of his supervisor, Prospero Pastoral (called "Mr. Pete" by most employees). In fact, when Mr. Pete was going to take an extended vacation to visit his home in the Philippines, Douglas was selected as one of the individuals to take over some of Mr. Pete's duties in his absence. Douglas got along well with his fellow employees and co-workers. Douglas' supervisors were Mr. Pete and Paul Markham, the assistant building manager of Building 3900. Douglas had a good relationship with Markham when he first started working in food service, but (according to Douglas) they did not get along so well later on. There did not appear to be any overt animosity between the two men during the final hearing. In November 2013, Markham was advised by the kitchen manager that some food items (including several hams) were missing from the kitchen inventory. It was suspected that some night shift employees may have been stealing the food items. Markham was asked to investigate and see if there was any suspicious behavior by any employees. On the evening of November 22, 2013, Markham changed from his work uniform into civilian clothes just prior to midnight. He then drove to a parking lot just behind Building 3900 and sat inside his darkened vehicle. He had driven his wife's car to work that day so that his pickup truck (which employees would recognize) would not alert others to his presence. At around midnight, he saw two employees (Gerry Riddleberger and Andy Bartlett) sitting outside Building 3900 talking. He could see Douglas in the building through the window. A few minutes later, Douglas exited the building carrying a large black garbage bag. Markham got out of his car and walked toward Douglas. As he approached, Markham began to "chat" with Douglas about trivial things. He asked how he was doing; he asked where Ira (another employee) was; he made small talk.2/ Finally, Markham asked Douglas what was in the bag. Douglas responded that "these are tough times" and that "I have to take care of my family." He then opened the bag and showed Markham the contents therein. The bag contained numerous bags of potato chips and snacks, some bananas, packets of coffee creamer, and other small items. Markham asked Douglas to hand over the bag and he did so. He then asked Douglas for his badge and access key. When Douglas handed those over, Markham told him to leave the NAS and he would be hearing from the GCE human resources/employee relations department (HR). Douglas left the base and Markham waited around a while to see if any other employees were carrying suspicious items. Not observing any other suspect behavior, Markham concluded his investigation for that evening. The next day, Markham handed over the bag and Douglas' badges to HR. It was determined by HR that Douglas' attempted theft of the property constituted just cause for termination of his employment with GCE. The HR office notified Douglas of the decision to terminate his employment. Douglas thereafter visited the HR office to ask that the decision be reconsidered. Douglas was told that the process for reconsideration was to submit, in writing, his statement of the reasons and whether there were mitigating factors to be considered. Douglas submitted a four-page request for reconsideration to Kahiapo, director of employee relations, dated December 2, 2013. In the letter, Douglas admitted to the theft but rationalized that other employees were stealing food as well. He said he had seen Markham taking boxes out of storage and putting them in his truck, but did not know what the boxes contained. He said a blonde worker on the food line ate food from the serving line, but had no details about the allegation. He complained that other workers had been caught stealing but had not been terminated from employment. He alleged that a worker (Jeanette) stole a bag of bacon and only got suspended. Markham had no support or independent verification of the allegations. GCE had one of its employee relations specialists, Alan Harbin, review Douglas' reconsideration letter and investigate the allegations found therein. All of the allegations were deemed to be unfounded. There was a worker named Jeanette who had been suspended for eating an egg off the serving line, but this did not comport with Douglas' allegation. When Harbin's findings were reported to HR, Kahiapo notified Douglas via letter dated December 18, 2013, that his request for reconsideration was being denied. The termination of employment letter was not rescinded. The decision by HR was in large part due to the zero tolerance policy against theft adhered to by GCE. The GCE Employee Handbook contains the following: In accordance with the general "at will" nature of employment with GCE, generally, employees may be discharged at any time, and for any reason. * * * An employee may be discharged on a first offense and without prior disciplinary action if the violation so warrants. * * * Conduct that may result in immediate termination of employment includes, but is not limited to: * * * [12] Theft, pilfering, fraud or other forms of dishonesty. It is clear--and Douglas admits--that Douglas was guilty of theft. He attempted to steal a bag of food items from the building in which he worked. During his term of employment, Douglas never made any claim concerning discrimination against him or anyone else due to his race, African-American. He was never mistreated or treated differently than any other employee by his supervisors. Douglas did not have any problem doing his job. His disability, being hard of hearing, did not adversely affect his employment. He never asked for any accommodation to do his job or suggested to anyone that his disability interfered with his ability to perform his duties. There are simply no facts in this case upon which a claim of discrimination could reasonably be based.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, upholding its determination that no cause exists for a finding of discrimination against Petitioner, Terry R. Douglas, by Respondent, Gulf Coast Enterprise. DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2014.
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 issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of June, 2016.
