The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to her age.
Findings Of Fact Petitioner, Sandra Minnie, is a 62-year-old female. Ms. Minnie had been working as an assistant manager at a Wal-Mart store in Marion, Ohio, but in late 2008, applied for a transfer to Store 5300 in Gibsonton, Florida. Store manager Vicki Tillman interviewed Ms. Minnie and in November 2008, hired her as an assistant manager at Store 5300. Ms. Tillman is currently 61 years old. While in Ohio, Ms. Minnie had worked as the front-end assistant manager1/ for Wal-Mart, and accordingly, was hired to work in the same capacity at Store 5300. Wal-Mart assistant managers are routinely scheduled to work between 52 and 56 hours per week. Ms. Minnie's scheduling would have been dictated by the position that she held, to wit, front-end manager. Ms. Minnie received a copy of, and was familiar with, Wal-Mart's Discrimination and Harassment Prevention Policy. The Discrimination and Harassment Prevention Policy instructs employees who experience harassment or discrimination to report the violation to a salaried member of management, or to call the Wal-Mart Ethics Hotline. Ms. Minnie was also familiar with Wal-Mart's Open Door Policy, which allows associates to report any concerns they have up the chain of command, all the way to the CEO. Despite being aware of both of these policies, Ms. Minnie never utilized either policy, and never reported that she believed that Vicki Tillman, or anyone else with Wal-Mart, was discriminating against her or harassing her because of her age. Although Ms. Minnie made several handwritten notes of occasions on which she felt her superiors had mistreated her, she never approached a member of Wal-Mart management to discuss her complaints. Soon after Ms. Minnie began as an assistant manager at Store 5300, it became apparent that she did not perform many of her job responsibilities properly, and that there were many assistant manager duties that she did not know how to perform, and often performed incorrectly. After several informal conversations between Ms. Minnie and both Co-Manager Maness and Store Manager Tillman regarding Ms. Minnie's performance deficiencies, and after seeing no improvement, Ms. Minnie was given a verbal “coaching”2/ on January 8, 2009, for failure to adequately perform her duties as an assistant manager. Several of the issues covered during this verbal coaching had been informally discussed with Ms. Minnie on prior occasions. Ms. Minnie did not challenge this coaching. On the same day as her coaching, Ms. Minnie's niece was caught shoplifting at Store 5300. While Ms. Minnie was not held responsible for the actions of her niece, she felt that management "seemed to distrust [her] integrity after that point." Despite continued informal conversations and counseling by members of management, Ms. Minnie's performance did not improve. Furthermore, Store Manager Tillman began to receive complaints from other assistant managers about having to take on too many of Ms. Minnie's responsibilities because she was not pulling her own weight. On April 9, 2009, Ms. Minnie received a written coaching for giving manager's keys to an hourly associate, and for failing to accurately verify a cash deposit before approving it, resulting in the bank deposit being $1,000.00 short. Again, Ms. Minnie did not challenge this coaching. On another occasion, Ms. Minnie violated Wal-Mart policy by cashing her own check personally in the cash office instead of having the next level of management above her cash it. Ms. Tillman instructed Co-Manager Maness to have a conversation with Ms. Minnie about the correct procedure for check cashing, and instructed Ms. Maness not to formally coach Ms. Minnie at that time. In the weeks prior to Father's Day, all managers received an e-mail notifying them that a specific model of television was due into the stores, in limited quantities, for the Father's Day sale. The e-mail specifically stated that there would be a “sale-block” placed on the television, and that the televisions could not be sold prior to the sales event. As the assistant manager in charge of the front end and back room, Ms. Minnie would have received this e-mail. On the evening of June 9, 2009, prior to the Father's Day sale, Ms. Minnie took one of the Father's Day sale televisions from the back stockroom (which had never been on the sales floor) and brought it to the electronics department cash register to purchase. When the television was rung up, the cash register prompted: "sale not allowed." Despite this clear instruction, Ms. Minnie permitted the cashier to call over another assistant manager (Terry), who overrode the sale block and allowed the sale to be completed. Associates are not permitted to bring merchandise that has never been on the sales floor directly from the back room to a cash register for purchase. Moreover, associates are not permitted to override "sale not allowed" register prompts. When Co-Manager Maness arrived at work on June 10, 2009, she was informed by the electronics department manager that a sale block override had been performed on a television that was being held for the Father's Day sale. Ms. Maness investigated the sale and discovered that Ms. Minnie had violated Wal-Mart policy by removing the television, which was being held for a future sales event, from the back room, and purchasing it, despite the register prompt, "sale not allowed." Ms. Maness further concluded that the assistant manager who had overridden the sale block had also violated Wal-Mart policy. Even though overriding a sale block was potentially a terminable offense, Ms. Maness consulted with Store Manager Tillman, who instructed Ms. Maness to just coach both Ms. Minnie and the assistant manager to the next level. Because Ms. Minnie had already received a verbal and a written coaching, Ms. Maness drafted a Decision-Day Coaching for Ms. Minnie.3/ Ms. Minnie never returned to work at Store 5300 after purchasing the television on June 9, 2009. Although Ms. Minnie was scheduled to work on June 12, 2009, she called in sick. She then took her previously scheduled vacation from June 13-19, 2009. At the end of her vacation, instead of returning to work, Ms. Minnie submitted leave of absence paperwork indicating that she needed to be out until October 23, 2009. Ms. Minnie's leave of absence paperwork was approved by Store Manager Tillman. Under Wal-Mart's leave of absence policy, Ms. Minnie technically remained an active employee of Wal-Mart until June 6, 2012. As such, she could have returned to Store 5300 at any time prior to that date as an assistant manager. Ms. Minnie felt that Ms. Tillman was a very demanding store manager. This opinion was shared by other assistant managers at Store 5300. At least three other assistant managers (all of whom were significantly younger than Ms. Minnie) confided in Ms. Minnie that they believed that Ms. Tillman was a difficult store manager to work with.4/ Although it is undisputed that Ms. Tillman was a demanding and difficult store manager to work for, the evidence of record does not support the conclusion that Ms. Minnie was treated differently than other employees because of her age. Nor does the evidence establish that the series of "coachings" leading up to Ms. Minnie's departure from Wal-Mart had anything to do with her age. Ms. Minnie testified that she felt "disrespected" by Ms. Tillman, and had been referred to by her as a "wet rag mop," while younger assistants were referred to as "perky new brooms." Petitioner also alleged that Ms. Tillman made disparaging remarks about her hairstyle and dress. The result of this mental harassment, according to Petitioner, was that Petitioner suffered a severe mental breakdown that made it impossible for her to return to work. However, no corroborating witnesses provided any evidence that Ms. Tillman, who is less than a year younger than Ms. Minnie, made any disparaging comments about Ms. Minnie's age, and Ms. Tillman vehemently denied making such remarks.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of October, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 5th day of October, 2012.
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell. Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination. Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager, Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.” Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees. Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager. Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders. Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner. Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event. In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival. During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and “too bossy” with the staff without having any good reason for such treatment of employees. Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break. Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees. After Petitioner returned from her week off, Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant. Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better. During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same. After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant. Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant. The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex. Although Petitioner asserted harassment from Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015. COPIES FURNISHED: Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Timothy Nathan Tack, Esquire Kunkel Miller and Hament 3550 Buschwood Park Drive, Suite 135 Tampa, Florida 33618 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Whether the Petitioner has been subjected to employment discrimination by termination, allegedly based upon race, and by retaliation, for filing a charge of discrimination.
Findings Of Fact On or about November 29, 2005, the Petitioner applied for a job as a part-time sales clerk with the Respondent. The Petitioner indicated that she was available to work on Sundays, Mondays, and Wednesdays from 7:00 a.m. to 5:00 p.m. This was because she was already employed in another job. During the course of the hiring and orientation process, the Petitioner learned of the policies of the Respondent against harassment and discrimination of all types. She was instructed in those policies and acknowledged receipt of them. The Petitioner began her employment with the Respondent on December 27, 2005, as a part-time sales clerk at a convenience store (No. 31) in Milton, Florida. When she began her employment, the Store Manager was Bob Kukuk. The Assistant Managers for that store were Michael Morris and "Cynthia." There were also two other sales clerks, Cherie Dorey and Lugenia Word. Both Ms. Dorey and Ms. Word are white. Soon after the Petitioner was hired, Mr. Kukuk announced his resignation as store manager. On January 31, 2006, the Petitioner attended the new employee training session in Milton, Florida, which included training in the equal employment and non-harassment policies of the Respondent. During the question and answer session, concerning the harassment and discrimination portion of the training, the Petitioner told Training Manager, Robert Birks that she had a problem at her store involving a conflict with another employee. She felt that she was being required to do things that other employees were not required to do. Mr. Birks advised Ms. Myles that she should provide a written statement concerning her complaints to her supervisor and he provided her with pen, paper, and envelope to do so on the spot. The Petitioner wrote out a note and returned it to Mr. Birks in a sealed envelope and he gave the envelope to the District Advisor, Jamie Galloway on that same date. After reading the Petitioner's note, Ms. Galloway met with Petitioner on that same day to discuss her complaints. The Petitioner informed Ms. Galloway that Michael Morris, an Assistant Manager at her store, was telling employees that he was going to be the new store manager. The Petitioner told Ms. Galloway that she felt Morris did not like her because of her race. Ms. Galloway informed the Petitioner that, in fact, Morris would not be selected as store manager for store No. 31 and that Mr. Kukuk would be replaced with someone else other than Morris. She also informed the Petitioner that the Respondent had a zero tolerance for harassment and discrimination and that if the Petitioner had any problems with Mr. Morris that she should personally contact Ms. Galloway. In her capacity as District Advisor, Ms. Galloway supervised the day-to-day operations of a number of stores. In fact, during the above-referenced time period, Ms. Galloway was supervising her own normal district area, as well as that of another district manager who had resigned. The three sales clerks at store No. 31, Ms. Dorey, Ms. Word, and Ms. Myles were all reprimanded ("written-up") in February 2006, because of their cash registers being "short," or containing insufficient funds at the close of the business day or shift. The Petitioner was also counseled for insubordination on this occasion because she told Ms. Word, in front of customers, that she was not going to take out the trash because Mr. Morris and Ms. Dorey would be into work soon and "they never did anything anyway." Ms. Word confirmed that Ms. Myles had made that statement to the store management. Sometime in February 2006 the Petitioner expressed the desire to transfer to a store on the West side of Pensacola because she was no longer employed in her other job in the Milton area. She therefore wanted to work for Tom Thumb at a location closer to her residence. The Manager, Mr. Kukuk at that time, informed Ms. Galloway of this wish on the part of the Petitioner. Ms. Galloway contacted the District Advisor for the West side of Pensacola, Bill Jordan, to inquire whether any positions were available that would fit the Petitioner's schedule. Ms. Galloway followed up on the question with Mr. Jordan several days later, but Mr. Jordan said that he had no employment positions available at that time. The Petitioner then filed her Charge of Discrimination on February 16, 2006, (her first charge). In her Discrimination Charge the Petitioner maintains that she was constantly "getting written-up" for unnecessary matters by Mr. Morris, the Manager. In fact, however, she was written-up only once while Mr. Morris was the Assistant Manager of the store, as were Ms. Word and Ms. Dorey, the other clerks. Both Ms. Word and Ms. Dorey are white. Patricia Merritt was installed as the new store manager at store No. 31 on February 24, 2006. Ms. Merritt has worked for the Respondent for 17 years as a clerk, assistant manager, and manager. Ms. Merritt had the responsibility of managing the store, ascertaining that all duties involved in store operation were accomplished and supervising and monitoring the performance of other store employees. She imposed discipline, including termination if necessary, and also hired employees. Mr. Morris failed to appear for work, beginning the first week of March 2006. He was terminated from his employment with the Respondent on March 9, 2006. In February or early March, Ms. Merritt informed Ms. Galloway that she had overheard another employee referring to the Petitioner having filed a claim against the Respondent because of Mr. Morris. Prior to that time Ms. Merritt was unaware of any problem between Mr. Morris and the Petitioner. Between the time that Ms. Galloway met with the Petitioner on January 31, 2006, and the time she heard from store manager Merritt that the Petitioner was still having a problem with Morris in late February or early March, the Petitioner had not contacted Ms. Galloway to report any problem. After being advised of the matter by Ms. Merritt, Ms. Galloway advised Ms. Merritt to contact the Petitioner to find out her version of the events which occurred and to offer her a transfer to any one of five stores that Ms. Galloway was responsible for on the East side of Pensacola. Ms. Merritt met with the Petitioner and offered her the transfer opportunity, which the Petitioner refused at that time because she had a mediation pending. When Ms. Merritt began duties as store manager a misunderstanding occurred about the Petitioner's schedule. Ms. Merritt understood, mistakenly, that the Petitioner was available for fewer hours of work than she actually was. This resulted in the Petitioner being scheduled to work fewer hours for two or three weeks. Ms. Merritt was then informed of the Petitioner's actual scheduling availability by someone from the management office. On March 20, 2006, the Human Resource Manager, Sheila Kates, met with the Petitioner. The Petitioner complained about her reduced hours which Ms. Kates discussed with Ms. Merritt. As soon as Ms. Merritt realized that she had misunderstood the Petitioner's hours of availability she increased the Petitioner's hours on the work schedule. The Petitioner agreed that Ms. Merritt had been unaware about any problem between the Petitioner and Mr. Morris, when she reduced the Petitioner's work hours schedule because of her misunderstanding of the Petitioner's availability. Ms. Kates again offered to allow Ms. Myles to transfer to another store if she wished (apparently to help her avoid her apparent conflict with Mr. Morris), but the Petitioner again declined. Ms. Galloway, as part of her duties as District Advisor, conducted store inventory audits. She conducted a store inventory audit for Store No. 31 on May 30, 2006. During that audit she discovered that the store had a significant inventory shortage. Ms. Galloway therefore scheduled a "red flag" meeting the next day with each employee at the store, as well as meeting with them as a group to discuss inventory control. All of the employees at the store were counseled regarding the inventory shortage, including Ms. Myles and Ms. Word. Ms. Word, who is white, was issued a written reprimand on March 24th and April 24th, 2006, because of cash shortages. Ms. Word was subsequently terminated on June 16, 2006, for causing inventory shortages by allowing her friends to come in and take merchandise out of the store without paying for it, as well as for excessive gas "drive offs," or instances where people pumped gas into their vehicles and failed to pay for it. The Petitioner was given a $1.00 per hour raise by Ms. Merritt on or about April 2006. Ms. Merritt also changed the Petitioner from a part-time to a full-time employee in May 2006. This change enabled the Petitioner to become eligible for employee benefits. Ms. Merritt also, however, reprimanded the Petitioner for a cash shortage on July 14, 2006. The Petitioner admitted that her cash register was $48.00 dollars short on that day. The Petitioner complained to Ms. Galloway sometime in July of 2006 that Mr. Morris, the former store manager, and no longer an employee, had been vandalizing her car when he came to the store as a customer. Although these allegations were uncorroborated at that time, Ms. Galloway advised the Petitioner to call the police about the matter and to contact Ms. Kates directly, in the Human Resources office, if there were any more such incidents. The Petitioner filed a retaliation claim against the Respondent on August 7, 2006. Ms. Merritt had been considering the Petitioner for promotion to assistant store manager. The Petitioner completed a background check authorization for that position on September 19, 2006. Mark Slater is a Regional Manager for the Respondent. His duties include supporting the District Advisor's position, which includes recruitment, hiring and training of managers, reviewing sales trends, and reviewing any other financial trends, such as cash shortages, "drive offs" and inventory losses. In mid-October 2006, in the course of a routine review of reports from Store No. 31, Mr. Slater became aware of a possible problem regarding excessive gasoline drive offs, and an unusual purchase-to-sales ratio. Shortly after his review of those reports, Mr. Slater went to Store No. 31 to review the store's electronic journal. The electronic journal contained a record of all the store transactions. In his review of that journal, he focused on "voids," "no sales," and "drive offs," which could explain the irregularities that he had observed in his initial review. In his review of the "voids" at store No. 31 during the period in question, Mr. Slater noted quite a few voids for cigarette cartons, for large amounts, in a very short period of time. Specifically, in the course of seven minutes, he observed voids in the total amount of $406.23. He found this to be highly irregular and suspicious. Mr. Slater also looked at the drive-offs, because he had noticed some trends on that report as well. In reviewing drive-offs, he noticed that the same employee number was involved in both the voids and the drive-off transactions. Mr. Slater noted in his review that one drive-off was held on a void and then brought down as a drive-off, which appeared suspicious to him. Mr. Slater than matched up the electronic journal transactions with the security video tape that corresponded with that journal entry. In observing the video tape, Mr. Slater identified the transaction entered as a drive-off, but saw from the video tape that a customer had in fact come in and paid for the gas in question with cash. When he began his review Mr. Slater did not know which employee had the employee number that was used in association with the voids and the gasoline drive-offs. However, after he had concluded his investigation, he researched that number and found out that it was the number assigned to the Petitioner. Mr. Slater thus knew that the Petitioner had voided the drive- off transaction, as shown in the electronic journal, while the video tape showed that the Petitioner had actually served the customer who, in fact, did not drive-off without paying, but had paid $20.00 in cash for the gasoline in question. When she was asked about the security video showing the Petitioner accepting the $20.00 for the transaction which she had entered as a gas drive-off, the Petitioner responded that she did not recall it. Mr. Slater concluded that the Petitioner had not properly handled the transaction and took his findings to the Human Resources Manager, Sheila Kates. After consulting with Ms. Kates, the decision was made to terminate the Petitioner's employment. Prior to making his investigation and prior to making his conclusions, Mr. Slater was unaware of any issues between the Petitioner and Michael Morris. None of his findings and decisions regarding the situation with the Petitioner's voids and drive-offs had anything to do, in a retaliatory sense, with any issues or complaints the Petitioner might have had against Michael Morris or to the Respondent concerning Michael Morris. After being discharged for related types of conduct, neither Ms. Lugenia Word, who is white, nor the Petitioner, Ms. Myles, are eligible for re-hire by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the charges of discrimination and retaliation at issue in their entirety. DONE AND ENTERED this 29th day of October, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2007. COPIES FURNISHED: Latarsha Myles 2103 Haynes Street, Apt. C Pensacola, Florida 30326 Cathy M. Stutin, Esquire Fisher & Philips LLP 450 East Las Olas Boulevard, Suite 800 Ft. Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this proceeding are whether Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act, and whether Petitioner’s Complaint of Employment Discrimination was timely filed.
Findings Of Fact Respondent operates a retail store located in Panama City Beach, Florida. At the time, William Todd Collins was the store manager. Petitioner is female. Around October 2011, Petitioner was first employed with Respondent in Puerto Rico as a jewelry sales expert, Level II. In October 2012, she transferred to Respondent’s Panama City Beach store as a Level II, jewelry sales expert. Towards the beginning of August 2013, Petitioner learned that she was pregnant. Shortly thereafter, she started displaying symptoms of her pregnancy and experienced dizziness from not eating due to her pregnancy. She was terminated on October 25, 2013. During her employment with Respondent, Petitioner performed her duties well and was not disciplined by Respondent until the incident that led to her termination. Additionally, the evidence demonstrated that Petitioner’s pregnancy was accommodated by allowing her breaks and to sit down as needed. She was also allowed to eat snacks as needed. On October 22, 2013, the store had closed for the evening. Petitioner and other sales associates were putting merchandise away and closing down the registers throughout the store. While standing at one of the sales counters, Petitioner was feeling dizzy from not eating, picked up a Godiva chocolate bar from the store’s inventory, and began to eat it. The Department Supervisor Mindy Watson saw her eating the chocolate bar and asked Petitioner what she was doing. Petitioner responded, “what does it look like I’m doing. I’m eating a candy bar.” Thereafter, Ms. Watson told Petitioner she needed to pay $4 for the chocolate bar. A discussion about the price of the chocolate bar ensued but, contrary to Petitioner’s claim that she offered to pay for the chocolate bar, the evidence showed that she did not offer to pay for the chocolate bar. The evidence was clear that it would have been easy to open a sales register so that Petitioner could pay for the chocolate with her credit card, which she had with her. Instead, Petitioner walked away from Ms. Watson and said she was going to place the wrapper in the vault as a reminder to pay for the candy bar. When Petitioner walked away with the chocolate bar, Ms. Watson informed Human Resources Supervisor Kelly Black about Petitioner not paying for the chocolate bar. At about the same time, Ms. Black approached the area where Petitioner was and saw Customer Service Specialist Pamela Wells also approaching the same area. Ms. Black heard Ms. Wells say to Petitioner, “oh you have chocolate,” to which Petitioner responded, “yes, and I stole it.” Once all the associates were gone for the day, Ms. Watson and Ms. Black checked the vault and the Fine Jewelry trash cans, but could not find the chocolate wrapper. Ms. Black called Mr. Collins that night and reported the incident. Additionally, both Ms. Black and Ms. Watson sent an email to Mr. Collins detailing these events. The day after the incident, Mr. Collins began an investigation. During the investigation, he interviewed Ms. Watson and Ms. Black, as well as other associates who were working the evening of October 22, 2013. Mr. Collins also learned that Petitioner was seen eating a Godiva chocolate bar from the store’s inventory several weeks before the October 22, 2013, incident. With that report, Mr. Collins checked Petitioner’s associate files to see whether she had purchased any chocolate over the last three months and to determine if she had purchased the chocolate bar from October 22, 2013. There was no record of Petitioner paying for any chocolate. On October 25, 2013, at 9:30 a.m., Petitioner returned to work. She did not pay for the chocolate bar either before or during her shift, even though, contrary to her claim at hearing that she could not pay for the chocolate during work, she had the ability to do so. After she did not pay for the chocolate bar during her shift, around 3:30 p.m., Sarah Menchaca, the manager on duty, told Petitioner that Mr. Collins, the store manager, wanted to speak to her. Petitioner went into Mr. Collins’ office and was terminated due to Misuse of Property/Assets. At the time of her termination, Petitioner signed dismissal papers agreeing to a summary of the events on October 22, 2013, and the reason for her termination. The dismissal papers did not mention Petitioner’s pregnancy and dizziness as the reason she took the candy bar. However, at the same meeting, Petitioner also wrote another two-paged detailed statement where she mentioned her pregnancy, the dizziness, and the fact that she had not eaten for hours. As indicated, Petitioner was terminated on October 25, 2013, and clearly was aware she had suffered an adverse employment action on that day. Thereafter, Petitioner obtained a Technical Assistance Questionnaire from FCHR. The questionnaire makes it clear on page 1 that it is not a substitute for filing an actual complaint with FCHR in a timely manner. It states, “REMEMBER, a charge of employment discrimination must be filed within 365 days of the alleged act of discrimination”. (emphasis in original). In this case, it is clear that Petitioner’s complaint was filed with FCHR on October 27, 2014, 367 days after she was terminated by Respondent. As such, her claims are time-barred and should be dismissed as a matter of law. Even assuming that Petitioner’s complaint was timely, the better evidence establishes that Respondent terminated Petitioner’s employment after a reasonable investigation determined that she took a Godiva chocolate bar from inventory and failed to pay for it. Petitioner provided no testimony or other evidence that other store personnel were allowed to take chocolate bars and not pay for them or that such individuals were not terminated for theft. Additionally, there was no evidence that Respondent discriminated against women who were pregnant or had difficult pregnancies. In fact, the evidence showed that Respondent employed pregnant women and made accommodations for such pregnancies when needed. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final order finding Respondent not guilty of discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 21st day of October, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2015. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Merrill W. Daily, Esquire JC Penney Headquarters Mail Station 1111 6501 Legacy Drive Plano, Texas 75024 Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Derek Benjamin Lipscombe, Esquire JC Penney Corporation 6501 Legacy Drive, MS 1108 Plano, Texas 75024 (eServed) Cheyanne Costilla, General Counsel Florida Commission of Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether the Petitioner was terminated because of his race, black, in violation of the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2001) (hereinafter FCRA).
Findings Of Fact The Petitioner, a black male, began his employment with Respondent in August 1999 as a truck driver. He was discharged on or about July 25, 2003. The Petitioner's personnel file reflects that he had an accident on January 20, 2000, during which he hit the front gate at the store. The gate was damaged, as reflected in the picture. The Petitioner's personnel file reflects an accident on May 22, 2001, in which he drove a forklift into power lines at a customer’s jobsite and damaged the lines and the customer’s satellite dish. The Petitioner was warned on numerous occasions by the safety coordinator and store manager about his failures to follow company safety procedures and policies. The Petitioner received a written warning on June 21, 2002, for his failure to wear his safety harness. All of the Respondent’s employees are required to wear a safety harness when working on aerial work platforms because of fatalities suffered by employees working on aerial work platforms without wearing their safety harness. The Petitioner had been verbally warned on numerous previous occasions to wear his safety harness, and it had been a topic at the safety meeting held on June 5, 2002. The Respondent enforces its safety policies to protect its employees and the public. The Petitioner continued to disregard company safety policies despite warnings. Larry Sutton, the Petitioner's supervisor, testified on cross-examination that he told the Petitioner several times that the Petitioner needed to start complying with the safety policies or his job would be in jeopardy. On December 9, 2002, the Petitioner drove a truck into and ripped the side of the metal warehouse at the store. An incident report was placed contemporaneously in the Petitioner’s personnel file. On January 16, 2003, the Petitioner drove over a scissor lift cover that was resting on the concrete pad next to the shop building. This pad was not supposed to be driven over. This accident was the result of the Petitioner’s failure to obey rules regarding vehicle operation on the premises. The Petitioner was not denied any raises because of his race. The Petitioner was hired at a rate of $10.00/hour and was earning $12.50/hour by September 2000. The Petitioner presented no evidence of any similarly situated people being treated or paid differently than he. On March 17, 2003, while attempting to pick up equipment from a customer’s worksite, the Petitioner got the equipment stuck in the mud and proceeded to try to winch it out of the mud by himself. His efforts caused the equipment to turn over, damaging the customer’s property, shearing a temporary power pole, spilling hydraulic fluid and fuel on the customer’s property and damaging the equipment. The store manager received a phone call from the customer complaining about what the Petitioner had done. The Respondent's store manager sent Thomas Rhoades, a field service mechanic, to the customer’s property to repair the damage caused by the Petitioner and to deliver a generator to the customer free of charge. See Respondent’s Exhibit 24. Pictures of the scene taken by Rhoades were placed in the Petitioner’s personnel file. See Respondent’s Exhibit 22. A written statement of his findings was provided by Rhoades and placed in the Petitioner’s personnel file. See Respondent’s Exhibit 23. During 2003, the Petitioner was entitled to three sick days, two personal days and 10 vacation days. The Petitioner had used up all of his sick, personal and vacation days by May 9, 2003, and yet missed an additional five days of work prior to his termination. See Respondent’s Exhibit 3. The Petitioner rarely provided advance notice of his absences, which caused severe staffing problems at the store. The Petitioner told Mr. Frye that he intended to take off Mondays, the busiest day of the week, to inconvenience the store manager and dispatcher. In addition to his attendance problems, the Petitioner also violated the Respondent’s Absenteeism or Tardiness Policy. The Petitioner admitted that he had received and understood that policy. See Respondent’s Exhibit 5 and 6. The Petitioner received a written warning for violation of the policy on June 18, 2003, which documented that the Petitioner had received verbal warnings in the past for violating this policy. See Respondent’s Exhibit 4. The Petitioner received a second written warning for safety violations on June 4, 2003. He was observed entering the store yard with equipment improperly tied to the bed of his truck and wearing his safety harness upside down. See Respondent’s Exhibit 14. The Petitioner had been warned about this on numerous occasions, including a verbal warning from the safety coordinator on June 2, 2003. The Petitioner frequently drove too fast through the yard and took poor care of the Company’s equipment. The Petitioner’s poor care of the equipment created additional work for the mechanics. Despite repeated verbal and written warnings about failure to follow store safety procedures and guidelines, the Petitioner continued to refuse to take such safety maintenance seriously. On Friday July 25, 2003, the Petitioner returned to the store at the end of the day with a load of equipment that he left on his truck. He did not report for work on Monday July 28, 2003, even though he was scheduled to work that day. When a service technician was sent to unload the Petitioner’s truck, he discovered that the load had been improperly tied down in such a way that, not only did it pose a safety risk, but it also damaged the equipment. This was called to the attention of the store manager and safety coordinator. Pictures were taken of the way the equipment was tied down and the damage to the equipment. See Respondent’s Exhibit 25. An Incident Report was prepared and placed in the Petitioner’s personnel file. See Exhibit 16. Following the incident on July 25, 2003, the store manager decided to terminate the Petitioner’s employment because of his attendance problems, safety problems, numerous accidents to include the incident on July 25, 2003. Prior to making that decision, the store manager consulted with the Respondent’s Regional Human Resources Manager, Sean O’Halloran. Mr. Cook and Mr. O’Halloran reviewed the Petitioner’s personnel file and the reasons for termination. Mr. O’Halloran approved of the termination decision. Mr. Cook also consulted with his assistant manager and safety coordinator, Chris Smith, who also approved the decision to terminate the Petitioner’s employment. Mr. Cook, the individual who terminated the Petitioner, had been the Petitioner's store manager since May 2002. The Respondent demonstrated that it had a legitimate, non-discriminatory reason to discharge Knott. The Petitioner did not establish that he was treated differently than other similarly situated non-black employees. Although the Petitioner testified that he was not given a gate key, both he and Mr. Sutton identified Mr. Frye, a black male, as someone who had received a gate key. The Petitioner presented no evidence that the non- discriminatory reason for his discharge was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the Petitioner’s charge of discrimination. DONE AND ENTERED this 10th day of December, 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 10th day of December, 2004. COPIES FURNISHED: Lester J. Knott 6312 Mockingbird Lane Pensacola, Florida 32503 Steven A. Siegel, Esquire Fisher & Phillips LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner worked for Golden Crust Bakery, Inc. at Grants Bakery, one of seven retail stores owned by Respondent, for approximately one week and was terminated by direction of Kenneth Judd, manager of Golden Crust Bakery, Inc. Ms. Confer had been hired by the manager of Grants, Ms. Collachio, as a sales clerk. Each day the sales clerks run a tally on their sales and it should match with the cash register receipts. When Petitioner's accounts failed to balance every day of the one week she worked at Grants, Judd told Mrs. Collachio to let her go. On one occasion Petitioner was told by Ms. Collachio that she couldn't hear the customers when her back was turned to the customers. At the time Judd directed that Ms. Confer be fired he had no knowledge that she had a hearing problem. At the hearing Ms. Confer presented no evidence that she had a hearing disability. Her only testimony was that she was told by Ms. Collachio that when she turned her back to the customers she couldn't hear the customers and Ms. Collachio would have to let her go.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of his national origin.
Findings Of Fact The evidence adduced at final hearing established the facts that follow. In May 1999, Winn-Dixie hired Torres to work as a bagger in one of its grocery stores. Until the event that precipitated his termination in July 2000, Torres’s job performance was generally satisfactory, although he was formally reprimanded at least once, in December 1999, for insubordination. Torres was at work bagging groceries on July 14, 2000. The store was crowded that day, and the lines were long at the cash registers. A customer checking out in one line asked Torres——who was stationed at another lane——to bag his groceries. Torres refused, and the man (according to Torres) called Torres an “asshole.” Torres retorted, “You’re the asshole.” (At hearing, Torres admitted using the epithet in front of “a whole line” of customers but explained——in effect——that, since his antagonist had used the word first, the man had it coming.) Having thus offended one another, the two men——Torres and the customer——engaged in a loud shouting match. The assistant store manager, who was in the parking lot outside when this verbal altercation began, was called inside to restore calm and order. Taking charge, he separated the disputants, apologized to the customer (who was a regular shopper at that store), and sent Torres home to cool off. When Torres reported for work the next day, he was fired. He complained, then as now, that Winn-Dixie’s decision was the result of his Puerto Rican origin. His supervisors, however, claimed——then as now——that the cause of Torres’s firing was his profanity-laced row with a customer, which had occurred in front of other customers. Ultimate Factual Determinations Winn-Dixie fired Torres, not because of his national origin, race, or ethnicity, but because Torres quarreled with a customer——angrily and loudly——before other customers. This is a legitimate reason for a grocery store to discharge a bagger. There is no credible, competent evidence that Winn- Dixie tolerated similar behavior in non-Hispanic (or non-Puerto Rican or non-minority) employees. The evidence does not support a finding that Winn-Dixie feigned disapproval of Torres’s dustup with a shopper as a pretext for discrimination. In short, Winn-Dixie did not discriminate unlawfully against Torres.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Torres’s Petition for Relief. DONE AND ENTERED this 30th day of August, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2002. COPIES FURNISHED: Modesto A. Torres 25302 Southwest 127th Place Miami, Florida 33032 Maria H. Ruiz, Esquire 799 Brickell Plaza, Suite 900 Miami, Florida 33131 Denise Crawford Clerk of the Commission Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 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 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 Whether the Respondent engaged in a discriminatory employment practice contrary to Chapter 760, Florida Statutes, by paying the Petitioner less that other similarly situated employees and by discharging the Petitioner based upon the Petitioner's race, national origin age and disability?
Findings Of Fact The Petitioner is a black male of Haitian extraction. His date of birth as given in his personnel records (Exhibit 7) is June 16, 1977. The Respondent is an employer within the statutory definition that engages in the rental of trailers, trucks, and moving supplies and sales and installation of equipment used in towing trailers. The Petitioner did not present any evidence regarding disability or age. The Petitioner was initially employed by the Respondent in 2002 as a customer service representative making $6.50/hour. Several month later, he received a raise to $7.00/hour, and before the end of the year, he received another raise to $7.50/hour. In the first half of 2003, the Petitioner was moved to the position of Assistant Moving Center Manager and his salary increased to $8.50/hour. In the fall, he received a raise to $9.25/hour and was given another raise to $11.50/hour before year's end. Testimony was received from Arthur Williams, who was the store manager and familiar with the operations of the company, although at the time of Petitioner's termination, he was new to the position and "in training." The pay for personnel employed by the Respondent is established nationwide and is based upon cost of living factors for an area. The wages paid to the Petitioner were slightly above the average for an area like Tallahassee, and reflected the Petitioner's hard work. His pay was in line with others doing similar work. The Petitioner alleged Clint Barrineau was paid more than he was paid. The evidence indicted that Barrineau had held in his career with the company, every position in its stores, including area manager. Barrineau had left the company for personal reasons, and upon his return in July 2003, was hired at $9.00/hour. Subsequently, he was promoted to the position of Hitch Professional at $11.50/hour. Notwithstanding Barrineau's prior experience, generally, it take less time for a person to be promoted as a hitch professional than as an assistant moving center manager reflecting hitch-related sales as an income center in the business. Both Barrineau and the Petitioner were making the same salary when the Petitioner was terminated. The Petitioner testified that he was denied promotion to store manager on two occasions. The Petitioner did not establish his qualifications for this position; however, evidence was received that the first person employed in that position was Henry Barnes a white male, and the second was Arthur Williams, a black male. Williams was brought in from outside the company; however, he had significant experience in retail sales management. The Petitioner's primary claim related to his discharge. The evidence presented indicated that on May 4, 2004, the Petitioner closed the store as the general manager on duty. As the manager on duty, it was his job to prepare the daily receipts for deposit in the bank, and retain a fixed amount for business operations on the next day. The Petitioner did this, and the bank deposit was made. On the following day, Arthur Williams, the store manager, arrived with Chuck Newell, the Field Relief Manager, who was helping to train Williams. The two men opened the store, which was duly locked, and Williams disarmed the alarm system. Williams opened the store safe, and counted the money. There was supposed to be $1000 kept in the safe for store operations. The count revealed only $800. Williams and Newell recounted and then search the safe and cash registers to ensure it had not been left in one of these places; however, the money was not present. Having assured themselves by checking and rechecking that the money was not present, they proceeded to open the store for business with the money on hand, and then check with the bank. They physically drove to the bank and checked the nightly deposit, which was correct, the deposit receipt having tallied with the money deposited. Williams and Newell returned to the store and called the alarm system center. This center is operated by U-Haul, and each authorized employee has his or her own code for disarming the alarm upon entering the store. If the code is not entered, or if the premise is broken into, the alarm goes off. The alarm center reported that there were no entries into the building after it was locked the previous night until Williams opened it o that morning. There was no evidence of the building being burgled. When the Petitioner reported to work on May 5, 2004, Williams confronted him about the missing money. The Petitioner did not have an explanation. As the manager closing the store, the Petitioner was solely and personally responsible for the deposit and for securing the money left on the premises. Although personnel were permitted to make up cash drawer shortages, the money in question was "store" money, and the amount involved was more significant that typical cash drawer shortages. Having determined that there was in fact a cash shortage and that the Petitioner was the person responsible for the accountability and security of the funds, Williams made the determination to discharge the Petitioner. Williams, although in training, was the sole individual responsible for the decision to discharge the Petitioner. As mentioned above, Williams is a black male. Williams testified further regarding other persons whom he had discharged. Ms. B. Heaulskamp was discharged for refusal to work her assigned schedule. Mr. Zak White, a white male, was discharged for a shortage in his cash drawer. Heaulskamp was provided a letter of termination; however, this was Williams' first termination, and he was advised it was company policy not to provide termination paperwork. He did not provide the Petitioner or White with such paperwork. Williams hired the Petitioner's replacement, William Westry, who was a black male. Williams has hired two Haitians since the Petitioner's termination, both of whom were still employed at the store.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing the Petitioner's claims. DONE AND ENTERED this 26th day of May, 2005, 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 26th day of May, 2005. COPIES FURNISHED: Gueslin Vincent Post Office Box 20123 Tallahassee, Florida 32316 Jeremy P. Hertz, Esquire For & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801-3379 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
