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 The issues to be resolved in this proceeding concern whether the Petitioner was the victim of a discriminatory employment practice perpetrated by the Respondent by the alleged discharge of the Petitioner on account of her handicap.
Findings Of Fact The Respondent, Sunshine Jr. Stores, Inc., is a Florida corporation, with the principal offices located in Panama City, Florida. The Respondent operates convenience stores in Marianna and Alford, Florida, along with numerous other locations. On December 14, 1990, the Petitioner, Jo-Ann Duffy, was hired as a sales associate and placed in the Marianna store. She indicated in her job application that she was willing to work in Chipley, Bonifay, Marianna and Panama City, Florida. The Petitioner received her employee training in the policies and procedures under which the Respondent operates. She received training in policy no. 030-040, the robbery/theft policy. She signed a "statement of understanding" to that effect, acknowledging that she had received such training. That statement of understanding acknowledges that if the Petitioner violated company policies, such as the robbery and theft policy, her employment was subject to termination by the Respondent. The Petitioner was described as a good worker, initially; and she had a good working relationship with her supervisor, Mr. George Susanka. Mr. Susanka was the store manager and ultimately received some complaints regarding the Petitioner's attitude toward customers. He verbally counselled her regarding this matter. On April 25, 1991, the Petitioner received a written reprimand for failure to perform assigned duties, specifically, noncompliance with policies and procedures, including with regard to inventory shortages. The reprimand was placed in her personnel file. All of the employees at that store, Store No. 190, were also given written reprimands concerning these matters. On May 2, 1991, the Petitioner suffered an injury due to slipping and falling on a wet floor at the Alford Store No. 190. The Petitioner was taken to the emergency room and treated for her injuries. The physicians determined that the Petitioner had suffered a cervical spondylosis, with no evidence of acute injury. After a two-week leave of absence, the Petitioner received permission to return to work from her doctor, Dr. Laubauah, an orthopedist. On June 14, 1991, he released her to return to work with restrictions on her bending and lifting of weight. The Respondent was aware of the Petitioner's work restrictions and that she was receiving worker's compensation benefits from the Respondent as a result of her injury. The Petitioner returned to work at Store No. 190 in Alford, Florida, under the supervision of Renate Ovaldson, who was then store manager. The Petitioner was placed on light duty which is generally defined as merely operating the cash register. She was allowed to sit on a stool behind the counter while she worked, in view of her condition. The Petitioner was later transferred to Store No. 226 in Marianna, Florida. That store was under the supervision of George Susanka, the Marianna store manager. The basis for transferring the Petitioner to that store was that Mr. Susanka was shorthanded and needed another sales associate. Mr. Susanka had previously maintained a positive working relationship with the Petitioner at Store No. 190, and the decision to transfer the Petitioner to Store No. 226 was deemed to be beneficial to the store and to Mr. Susanka. The Petitioner was given light duty at Store No. 226, also, and was given a stool to sit on while she worked. Mr. Susanka was aware that she was taking medication for her back injury. Mr. Susanka's supervisor, Keith Shipman, was not aware that the Petitioner was taking medication. Store No. 226 was considered a less busy store in terms of sales volume; however, the neighborhood was considered to be less desirable. Mr. Susanka soon began receiving verbal complaints regarding the Petitioner's attitude toward customers at Store No. 226. He received a verbal complaint from a Ms. Virginia Smith stating that the Petitioner had been flirting with several men one evening at the counter and had permitted them to go into the store cooler and leave the store with beer without paying for it. A written statement signed by Virginia Smith regarding this incident was later received by the Respondent and placed in the Petitioner's personnel file. Mr. Susanka confronted the Petitioner concerning this incident and asked her if she had been afraid to report the theft, and she indicated that she was not. Mr. Susanka and the assistant store manager, Mr. Coley, conducted a "night ride", whereby they parked their car across the street from the store to observe activities at the store while the Petitioner was on duty. Mr. Susanka witnessed a customer walk in the store and walk out with a small item without paying for it. The only door in which to enter and exit the store was a few feet directly in front of the cash register counter. Mr. Susanka submitted a written statement on the incident, which was placed in the Petitioner's personnel file by the Respondent. Mr. Susanka discussed the various complaints he had received concerning the Petitioner's attitude, performance, and the incident he observed with Mr. Coley with his district manager, Keith Shipman. Mr. Shipman had been aware of prior complaints which the Respondent had received about the Petitioner's attitude with customers, as well. Based upon the documents contained in the personnel file, customer complaints and the fact of customers leaving the store without paying for merchandise while the Petitioner was on duty, and Mr. Susanka's relation of the various incidents, Mr. Susanka and Mr. Shipman made a decision to terminate the Petitioner. The stated reason for Petitioner's termination was violation of company policy and poor customer relations. Mr. Susanka completed an employee status report terminating the Petitioner on July 24, 1991. That report stated that the reason for termination was "on Saturday, July 20, 1991, the clerk, Jo- Ann Duffy, was talking and laughing with six guys at the counter and at that time there was three to four guys in the cooler and walked out with beer and did pay for it and also has a bad attitude with customers". Mr. Susanka testified that the statement had been written in error and it should have read "did not pay for it". The employee status report was signed by Mr. Susanka and Mr. Shipman and placed in the Petitioner's personnel file. Mr. Shipman stated that due to the fact that inventory control was so important in the convenience store business, the Respondent simply could not afford to keep in its employee a sales associate who allowed merchandise to leave the store unpaid for. The Respondent's disciplinary and termination policy no. 040-003 generally states the procedures for discipline and termination. The robbery/theft Policy No. 030-040 states that an employee who violates the guidelines of the robbery and theft policy (as the Petitioner did) is subject to disciplinary action up to and including dismissal.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5313 Petitioner's Proposed Findings of Fac A-C. Accepted. D. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. E-F. Accepted. G-H. Accepted, but not in itself materially dispositive. I-J. Accepted, but not in themselves materially dispositive. Rejected, as not in accord with the greater weight of this witness' testimony which was that some violations, such as allowing theft to occur, are the proper subjects of first occurrence terminations. Accepted, but not itself material. Rejected, as immaterial. Rejected, as immaterial given the greater weight of the testimony and evidence, which the Hearing Officer has accepted and embodied in the above Findings of Fact. Rejected, as immaterial. Accepted. Accepted, but not materially dispositive. Accepted, but not materially dispositive in itself. S-T. Accepted, but not itself materially dispositive. Accepted, but not itself materially dispositive. The Respondent's position in this case does not depend upon all low inventory being the fault of the Petitioner. Accepted, but not itself materially dispositive. Respondent's Proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Ms. Jo-Ann Duffy Route One, Box 221-X Chipley, FL 32428 Kelly Brewton Plante, Esq. TAYLOR, BRION, BUKER & GREENE 225 South Adams Street Suite 250 Tallahassee, FL 32301
The Issue Whether Respondent discriminated against Petitioner based upon sex, race, or disability and/or retaliated against her for engaging in a protected activity.
Findings Of Fact Based on the testimony and exhibits admitted at the final hearing, the following Findings of Fact are made. Petitioner’s Background At all times material to this matter, Petitioner identified as a Caucasian woman. In February of 2020, Ms. Smith was diagnosed with Hashimoto’s disease.3 Ms. Smith’s Hashimoto’s disease, when active, causes her to experience debilitating fatigue, gastric problems, muscle aches, headaches, and hair loss. Her condition, when active, substantially limited several of Ms. Smith’s major life activities, including the ability to function on even a basic level. Ms. Smith testified that she requires treatment from a doctor to manage and minimize the most debilitating aspects of her condition. Ms. Smith was hired by Cellular Sales in 2016, as a sales representative. In October 2018, Ms. Smith moved to Florida and was transferred to a Cellular Sales location in Florida. In December 2019, Ms. Smith was transferred to the Cellular Sales location in the Brandon Town Center Mall (Brandon Mall) in Brandon, Florida. Ms. Smith was then promoted to assistant store manager at that location. As a sales representative, Ms. Smith was responsible for sales, client services, and developing sales leads. She had the same responsibilities as a store lead. 3 Hashimoto’s disease is a condition that causes one’s immune system to attack one’s thyroid. During Ms. Smith’s employment with Cellular Sales, she never received disciplinary action. Cellular Sales Policies and Procedures Respondent, Cellular Sales, sells Verizon Wireless products, services, and accessories. The Cellular Sales Employee Handbook contains a Pyramid of Ethics, which prohibits employees from “discriminating, offensive, abusive, or harassing behavior and/or language” against another employee and prohibits “retaliation against those who report suspected violations of law or Company policy.” Cellular Sales also maintains an open-door policy, which directs employees to notify a supervisor, contact the corporate human resources department, or submit a complaint via the Report It Hotline, if they have any concerns about their employment or policy violations. Cellular Sales also maintains an Equal Employment Opportunity policy which prohibits discrimination based, among other characteristics, on sex, national origin, disability. The Individuals With Disabilities policy directs employees to notify both their supervisor and the corporate human resources department of any reasonable accommodation requests so that they can be addressed by the human resources department. Ms. Smith received and signed for a copy of the Employee Handbook when she began working for Cellular Sales in 2016 and received an updated copy of the handbook in 2017. She also received annual training on the company’s policies, including those related to the prevention of discrimination. All managers that were involved in this matter also received annual training on Cellular Sale’s policies. Brandon Mall Managers Mr. Abujbara identifies as a male of Arab national origin. Prior to working at the Brandon Mall, Ms. Smith worked with Mr. Abujbara at a Cellular Sales location in the Central Florida market. Mr. Abujbara became the store lead at the Brandon Mall store at the end of 2019. When Mr. Abujbara became the Brandon Mall Store Manager, he selected the sales representatives that he wanted on his team, which included Ms. Smith, an African-American female, and another Caucasian female. Mr. Abujbara also promoted Ms. Smith to be the assistant team lead. Mr. Abujbara did not select a male of Arab origin for the position. Mr. Abujbara was later promoted to store manager at the Brandon Mall. During Mr. Abujbara’s tenure as store manager, Ms. Smith received scheduling privileges as a result of her position as store lead. In June 2020, Mr. Abujbara was promoted to general manager. As a result of Mr. Abujbara’s promotion, Mr. Alabed became interim store lead for the last two weeks of June 2020. Business Practice for Cellular Sales During COVID-19 At some point, the Brandon Mall store closed for a period of time due to the COVID-19 pandemic. Employees were given the option to accept COVID-19 leave pay during that time. Ms. Smith accepted the paid leave. Mr. Walkover testified that the pandemic changed the Cellular Sales business, especially at the Brandon Mall location, because it could not depend on traffic walking in the door. It required Cellular Sales to be creative in the way it drove traffic to its locations. Cellular Sales implemented new performance standards, including a goal for sales representatives to make a minimum number of weekly phone calls. Mr. Crutcher, the regional director, e-mailed the Central Florida market about the new sales calls standards. He instructed sales representatives that “[e]very sales rep will be responsible to make at least 10 calls each week – this will be tracked and credited weekly to keep our leads list from running dry.” The new performance standard was effective starting May 1, 2020. Ms. Smith acknowledged that she received the email. Notably, the email did not indicate which day would mark the end of the week. All sales representatives were required to make the calls through a program called RingCentral, a voiceover IP phone application that allows Cellular Sales to track and monitor calls. The sales representatives could use RingCentral to make calls outside the store as well. RingCentral also has a built-in team chat allowing communications among the sales team. Mr. Abujbara’s used the RingCentral chat feature to communicate with his sales team at the Brandon Mall. On May 16, 2020, Mr. Abujbara sent at least two specific messages to his sales team using RingCentral which stated: First Message: “[t]he market-wide standard for outbound phone calls through ring central from our leads app is 10 per week. These will be monitored weekly and write ups will be issued at the end of the week for all that do not meet this minimum expectation of 10 calls.” Second message: “This week. Calls are due by Friday.” On May 21, 2020, Mr. Abujbara sent a reminder message that stated: “Minimum expectations/n10 calls for the week due tomorrow/n Total of 40 by end of month due on 31st Any issues with leads or powerapp reach out to Mo Khalel and communicate with me.” In addition to the messages, two other members of the Brandon Mall sales team testified that Mr. Abujbara also announced the Friday deadline in a meeting. Ms. Smith testified that she did not receive the RingCentral messages that the calls were due on Fridays. The undersigned finds that there is competent substantial evidence to demonstrate that Mr. Abujbara provided timely and sufficient notice, using the method of communication commonly used by his team, that the sales call deadline was Friday of each week. Ms. Smith’s Work Performance and Discipline History Ms. Smith made 10 calls for the first, second, and fourth weeks of May 2020. In these weeks she worked two shifts, three shifts, and four shifts, respectively. However, she made seven calls the third week of May 2020. Thus, she failed to meet the minimum 10 calls goal by Friday for the third week of May 2020. Ms. Smith testified that she missed work days the third week of May 2020 because she had “doctors’ appointments.” Ms. Smith testified that she had a chiropractor appointment that week and that she regularly gets blood work. The evidence offered at hearing was not sufficient to rebut her testimony and thus, it is credited. However, even if Ms. Smith had an appointment the third week of May, there was no credible evidence that anyone else at Cellular Sales had knowledge that she had an appointment the third week or that she missed her sales goals as a result of the appointment. On May 23, 2020, Mr. Abujbara sent Ms. Smith an e-mail with a Disciplinary Action Form. The disciplinary action was for insubordination in a meeting and for failing to make the required minimum 10 calls the third week of May 2020.4 Ms. Smith was then placed on a performance plan which stated the following, “[g]oing forward we need to make sure that you are attaining minimum standard for phone calls on a weekly basis … .” 4 The third week in May 2020 ended on May 22, 2020. After receiving the email containing the disciplinary action on May 23, Ms. Smith disputed the basis for the action. The text exchange between Ms. Smith and Mr. Abujbara was as follows: Ms. Smith: Give me a call when you can. I have 9 completed calls for the week Mr. Abujbara: Hey I’m out of the office until Monday for religious purposes. I will follow-up with you Monday when I return. Ms. Smith: I will accept the write up for the calls. But I will be having extensive conversation with you, Eric Brown or Eric Walkover regarding what is happening at this store. So please get back to me when you can. Ms. Smith then texted Mr. Brown on the same date. The text exchange in pertinent part was as follows: Ms. Smith: Also, are calls due on Friday or By end of day Saturday? Since the week technically ends on Saturday. Mr. Brown: Technically the original email was sent Friday. It should have been discussed at your draft as well that day so we have been running it Friday to Friday. Ms. Smith: Okay. I made 8 calls this weeks because we got slammed yesterday as I was finishing them. So to avoid a write up I was wondering if I could have today to complete them. Ms. Smith never told Mr. Abujbara or Mr. Brown that the reason for missing the call goal was due to her medical condition or related appointments, discrimination, or retaliation. Ms. Smith also disputed the disciplinary action with Mr. Walkover stating that she got her calls done by Saturday and should not have received the disciplinary action. Mr. Walkover told her that she missed the deadline, which was Friday. Like with Mr. Abujbara and Mr. Brown, Ms. Smith also never told Mr. Walkover that she did not meet her sales call goal because she had a medical appointment, nor did she complain that the disciplinary action was based on discrimination. Similar to the failure to make calls, Ms. Smith also contested the insubordination claim. Mr. Abujbara described her insubordination and unprofessional conduct that stemmed from her behavior during a team meeting where she expressed her disagreement5 with the new “chumming” policy. “Chumming” refers to the process of greeting and engaging clients in front of the store to attempt to bring them in for sales. Each sales representative working on that day would share in the commission for that sale. The new chumming policy for the Brandon Mall store permitted a sales representative who brought in a customer and closed a sale to keep the commission for the sale. Thus, the other sales representatives would not share the commissions for that sale. Mr. Brown created the policy because the store’s numbers were struggling with sales and he wanted to incentivize the sales representatives to attract customers that otherwise would not shop in the store. It was known amongst Ms. Smith’s coworkers that she did not like chumming and did not chum often. More importantly, she never requested an accommodation for chumming due to a disability or medical condition. Reading Book While at Work In June 2020, Mr. Abujbara was promoted to general manager and Mr. Alabed became the interim store lead at the Brandon Mall store. Ms. Smith wanted Mr. Alabed to be the store manager of the Brandon Mall store. Mr. Alabed testified that during the time he was the interim store lead, he had no knowledge that Ms. Smith had an autoimmune disease. 5 Petitioner’s former coworker, Mr. Sanchez confirmed that she was disrespectful to Mr. Abujbara in the meeting by interrupting him and complaining about the rule. On June 19, 2020, Mr. Alabed observed Ms. Smith reading a book on the sales floor while she was on duty. Instead of sending her home, Mr. Alabed directed her to put the book away and to begin “chumming.” Ms. Smith went into the mall area to chum but then, returned to reading her book. Given Ms. Smith’s failure to follow Mr. Alabed’s instructions, Mr. Alabed then took a picture of Ms. Smith reading, sent it to Mr. Brown, and notified him of Ms. Smith’s actions. The following day, on June 20, 2020, for the second time, Mr. Alabed observed Ms. Smith reading a book on the sales floor while on duty. On this day, customers were in the store. Mr. Alabed took a picture of Ms. Smith reading on that day and sent it to Mr. Brown. Mr. Brown called Mr. Walkover, both times he learned of Ms. Smith’s behavior, to inform him that Ms. Smith was reading a book on the sales floor and was not participating in team activities. Mr. Brown also sent the pictures of Ms. Smith reading a book to Mr. Walkover. Mr. Walkover contacted Mr. Jenkins to seek further advice regarding Ms. Smith’s actions. Mr. Jenkins testified that Mr. Walkover related to him that a sales representative was observed reading a book two days in a row on the sales floor, and that she was on a performance plan for not meeting phone call requirements. Mr. Walkover also sent the pictures to Mr. Jenkins that he received from Mr. Alabed. Mr. Walkover was concerned that Ms. Smith was not working while sitting at the desk reading a book. He believed her reading a book was also distracting to the rest of the team. He was also concerned that she had previously missed the minimum phone call expectations, for which she was on a performance plan. Mr. Jenkins told Mr. Walkover he would investigate Ms. Smith’s actions. Mr. Jenkins confirmed that Ms. Smith had been written up less than 30 days earlier for not making her minimum phone calls and that a security video showed her reading a book on the sales floor with customers in the store. Mr. Jenkins showed Mr. Walkover the security video. The video, from June 20, 2020, clearly shows Ms. Smith reading a book at her desk, while customers were in the store and other employees were working. After his investigation, Mr. Jenkins determined that Ms. Smith’s actions warranted termination. To ensure he was making the appropriate decision, Mr. Jenkins decided to speak with the corporate human resources department. Mr. Jenkins and Mr. Walkover called Ms. Calvert and explained the facts related to Ms. Smith, i.e., the employee was on a performance plan, reading a book twice while on duty and had a medical condition. Ms. Calvert affirmed Mr. Jenkin’s decision to terminate Ms. Smith because the decision was related to her work performance and behavior and not related to her medical condition. Mr. Jenkins shared his decision with Mr. Walkover and ultimately, Mr. Brown was directed to meet with Ms. Smith to terminate her. On June 24, 2020, Mr. Brown met with Ms. Smith to notify her that she was terminated and presented her with paperwork outlining the reasons for her termination. Ms. Smith opposed her termination on the basis that other employees engaged in non-work-related activities on the sales floor. She testified that other employees played games on their phones or watched movies. Mr. Walkover testified that sales representatives are expected to either be selling phones or gathering sales leads while at work. If they do not have a client in front of them, their job is to do what they can to try to draw in a client. Sales representatives were not permitted to watch movies, read books, or play games. He did note, however, that on occasion, employees were permitted to use their phones to direct business to the store. Ms. Smith admits that she openly read a book to learn more about her medical condition while at work on two separate days. Ms. Smith’s Disability The record is not clear regarding when Ms. Smith was first diagnosed with a thyroid condition. However, her medical records reflect a doctor’s visit of April 16, 2020, in which Ms. Smith was diagnosed with a thyroid condition. Ms. Smith testified that she notified her supervisors about her medical condition and about her periodic need to go to doctors’ appointments in order to keep her medical condition under control. Mr. Alabed testified that he was not aware of Ms. Smith’s condition. Ms. Smith testified that she was diagnosed with Hashimoto’s disease, and, a few months later, with Lupus. Throughout her employment, Mr. Abujbara gave Ms. Smith time off for medical appointments and other reasons, including for a car accident. At some point, Ms. Smith informed Mr. Abujbara that she thought she had Lupus and may need some time for doctors’ appointments. Mr. Abujbara asked if Ms. Smith needed shifts off, said he would help her get them covered, and to let him know of anything else he could do. Mr. Abujbara then contacted Mr. Jenkins to inform him they had a sales representative who was diagnosed with Lupus and needed guidance with how to assist her. Mr. Jenkins instructed Mr. Abujbara to contact Mr. Holloway, a sales representative who also serves as the Employee Relations Ambassador. He is responsible for talking to employees about their well-being and helping them get counseling services or Family Medical Leave Act (FMLA). Mr. Abujbara reached out to Mr. Holloway to inform him that Ms. Smith had some health conditions and may need assistance with FMLA. Mr. Holloway told Mr. Abujbara to provide Ms. Smith with his (Mr. Holloway’s) contact information to reach out to him so they could start the process for FMLA. The record contains extensive testimony about referring Ms. Smith for FMLA assistance. However, there is no mention about assistance for Ms. Smith regarding a request for a reasonable accommodation. Ms. Smith testified that she did not request FMLA; she was seeking a reasonable accommodation due to her disability. The undersigned finds Ms. Smith requested a reasonable accommodation in the form of intermittent leave for doctors’ appointments to treat her condition. Mr. Holloway e-mailed Ms. Vissicchio, who assists with FMLA requests. On June 19, 2021, Ms. Vissicchio e-mailed Ms. Smith, requesting information for her leave. Ms. Smith responded, “I do not currently need days.” On June 22, 2021, Ms. Vissichio followed up with an email as follows: “I didn’t file anything yet since you said you currently do not needs days off. Once I file they will require a dr evaluation and note and the paperwork filled out. Please let me know when that is all done and then I can put you in for intermittent FMLA in case future days are needed.” Ms. Smith replied to Ms. Vissichio as follows: “The days off most likely will not be in bulk. This is more of a long term condition. Will be seeing the doctors again these next two weeks. I can have them fill out the paper work. The days I need off this month have been covered.” Ms. Vissicchio testified that she did not file anything at that point because Ms. Smith was not requesting time off and the Cellular Sales’ third- party administrator that processes FMLA requests would deny a request without receiving supporting paperwork within 15 days of submitting the request. Ms. Smith did not complain to Ms. Vissicchio, who works in human resources, about discrimination based on her race, sex, or disability. Proposed Comparators At the hearing, Ms. Smith offered Ameer Salti and Mohammed Zarour as comparators to establish that she was treated differently than other employees. Mr. Salti was a sales representative with Cellular Sales. He received disciplinary action for insubordination because he refused to assist a client. He was instructed to go home for the remainder of his shift, on December 30, 2019. On March 17, 2020, Mr. Salti was disciplined a second time for making a client wait on an appointment, leaving his work station messy, and coming to work in flip flops. He was suspended for two weeks. On November 18, 2020, Mr. Salti was terminated for a failed drug screen. Cellular Sales maintains a drug-free workplace policy that subjects an employee to immediate termination for violation of the policy. Mr. Zarour, also a sales representative, was disciplined and terminated as well. He was disciplined on June 6, 2020, for failing to make 40 calls in May 2020. The evidence established that Mr. Zarour made 18 calls the third week of May. However, he failed to meet the required 40 calls per month. The simple math establishes that at least on one week, Mr. Zarour failed to meet the 10 calls minimum. However, the competent substantial evidence did not establish whether he failed to meet the minimum the fourth week (at the end of the month) or a different week. Thus, the evidence is not sufficient to establish that he was not disciplined for his failure to meet the minimum weekly call goals. However, the evidence did establish that he was disciplined for failing to meet required minimum sales calls. On July 27, 2020, Mr. Zarour was terminated by Eric Brown and Eric Walkover for policy violations, not dropping cash, not dropping trades, and failure to meet minimum call goals. Similar to Ms. Smith, Mr. Zarour was disciplined for failing to meet the minimum sales calls. However, there were no other similarities in behavior as Ms. Smith. In fact, neither of the offered comparators was observed reading a book two days in a row on the sales floor. There was discussion in Petitioner’s PRO pertaining to progressive discipline. While progressive discipline was not a Cellular Sales policy, Mr. Jenkins testified that Ms. Smith’s behavior warranted termination. Ultimate Findings of Fact Ms. Smith admitted she never complained about discrimination or retaliation to the human resources department or the Report It Hotline. She also admitted that she did not complain to anyone at Cellular Sales regarding discrimination or retaliation, or that a male of Arab national origin, or a non- disabled employee received better treatment. Ms. Smith admitted that she was reading a book on the sales floor on two separate, consecutive days. The evidence offered does not support a finding that Cellular Sales treated Ms. Smith differently than males of Arab national origin, or disabled employees. The evidence offered at hearing did not support a finding that Cellular Sales retaliated against Ms. Smith for engaging in a protected employment action. The evidence demonstrated that Ms. Smith was terminated for failing to meet workplace performance goals and reading a book on the sales floor on two days while on duty.
Conclusions For Petitioner: James Moten Thompson, Esquire Thompson Legal Center, LLC Suite 245 777 South Harbour Island Boulevard Tampa, Florida 33602 For Respondent2: Robert L. Bowman, Esquire Bryce E. Fitzgerald, Esquire Kramer Rayson LLP Suite 2500 800 South Gay Street Knoxville, Tennessee 37929 1 The hearing was conducted in person. However, the court reporter and one witness (Peggy Vissicchio) attended by Zoom conference. 2 The Respondent was represented by Robert L. Bowman and Bryce E Fitzgerald who were accepted as qualified representatives in this matter.
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 Petitioner, Jaqueline Smith, did not prove that Respondent, Cellular Sales Services Group, LLC, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 20th day of December, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Samuel J. Horovitz, Esquire Rogers Towers, P.A. Suite 1500 1301 Riverplace Boulevard Jacksonville, Florida 32207 James Moten Thompson, Esquire Thompson Legal Center, LLC. Suite 245 777 South Harbour Island Boulevard Tampa, Florida 33602 Robert L. Bowman, Esquire Kramer Rayson LLP Suite 2500 800 South Gay Street Knoxville, Tennessee 37929 Lori S. Patterson, Esquire Rogers Towers, P.A. Suite 1500 1301 Riverplace Boulevard Jacksonville, Florida 32207 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Bryce Ellsworth Fitzgerald, Esquire Kramer Rayson LLP Suite 2500 800 South Gay Street Knoxville, Tennessee 37929
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 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
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. In May of 1990, Petitioner, a black male, began working as a delivery driver for the former owner of the Domino's Pizza franchise in Tallahassee, Florida. Respondent bought the franchise in March of 1992 and retained Petitioner as a driver to deliver pizza at store number 5131. On March 30, 1992, Petitioner signed a statement that he had read and understood the Respondent's Employee Orientation Manual setting forth, among other things, standards for personal conduct. This manual specifically advises that an employee may be disciplined or discharged for: (1) negligent handling of company funds; (2) insubordination and refusal to do assigned work; (3) disturbing the work force and/or creating a disturbance; and (4) harassment of team members. At all times material hereto, Scott Nelson was the store manager at Respondent's store number 5131. Mr. Nelson had authority to hire and fire employees at that location. Though it was against store policy, Mr. Nelson and other employees frequently used profanity and told vulgar off- color jokes while working. Sometimes the jokes involved inappropriate racial overtones. At times Mr. Nelson would call black customers "stupid niggers" after they left the store. Petitioner would also use the term "nigger" in conversations but in a context he believed to be acceptable. Mr. Nelson encouraged employees to discuss any problem they had with management in the privacy of the office at the rear of the store. Mr. Nelson told the employees that they could speak freely during these discussions and nothing they said would be taken personally. The purpose of holding the discussions in the office was to prevent customers from overhearing the conversations. Occasionally, Mr. Nelson and an employee would have a heated argument and curse at each other as long as no customers were in the store. Other employees heard these arguments but there is no evidence that the arguments took place outside the confines of the office. During some of these arguments, Mr. Nelson would threaten to fire employees but not follow through with his threats or report the incidents to his superiors. At all times material to this proceeding, Niki Supplee, a white female, worked as a delivery driver at Respondent's store number 5131. She and Mr. Nelson had heated arguments in which they cursed each other. She was never written up or disciplined after these outbursts. The record does not reveal the location or the subject matter of the arguments between Ms. Supplee and Mr. Nelson. At all times material to this proceeding, Ms. Supplee had a black boyfriend. Upon learning that her boyfriend was black, Mr. Nelson offended Ms. Supplee by asking why she was attracted to a black man. He wanted to know what was wrong with her and why she could not find a white guy. Once or twice when Ms. Supplee heard Mr. Nelson use a racial epithet, she informed him that she did not appreciate that kind of language. Subsequently, Mr. Nelson would use a racial slur then apologize to Ms. Supplee. Petitioner and Mr. Nelson occasionally had a beer together after work. On one of these occasions, Mr. Nelson admitted that he had been raised in an environment where there were very few black people. Mr. Nelson admitted that he had to learn how to get over certain feelings about being around black people when he first began working at Domino's Pizza. At the hearing Mr. Nelson admitted that on occasion he may have made racial slurs in front of his employees about customers after they left the store. However, prior to the incident which is the subject of this proceeding, no employee ever complained to Mr. Nelson's supervisor, Ron LeStourgeon, about Mr. Nelson's use of racial epithets or perceived racial prejudices. There is no evidence that Mr. Nelson ever used a racial slur directed towards his employees or in relation to an employment decision. During the period of Petitioner's employment, he was given verbal warnings about failing to be at work on time, making personal stops on company time without permission, and refusing to perform certain tasks on the premises. Mr. Nelson would occasionally instruct Petitioner to do an assigned task at the store when other white employees were standing around talking. However, there is no persuasive evidence that Mr. Nelson's instructions to Petitioner were anything more than a reminder to do a previously assigned routine job for the day. Mr. Nelson required Petitioner to sign a statement on September 7, 1993, as a result of his refusal to follow directions without complaint. Mr. Nelson prepared the statement in which Petitioner agreed to follow the direction of management staff promptly and without complaint or risk disciplinary action including termination. The statement advises Petitioner that he should go directly to Mr. LeStourgeon if Petitioner had a complaint he could not resolve with Mr. Nelson. There is no competent persuasive evidence that Mr. Nelson created written or verbal policies designed to adversely impact Petitioner and not other employees. Mr. LeStourgeon was in the store 275 to 300 times during 1993. Petitioner did not attempt to contact Mr. LeStourgeon regarding any perceived racial discrimination at work. Petitioner's testimony to the contrary is not persuasive. On October 21, 1993, Petitioner filed a claim with the United States Department of Labor, Wage and Hour Division of the Employment Standards Administration. This complaint alleged that Respondent did not pay Petitioner for all of the hours he worked. Mr. Nelson subsequently resolved this dispute by taking Petitioner's word that he was due the money and including that amount in the next pay check. There is no competent persuasive evidence that Respondent's decision to terminate Petitioner's employment was related to the filing of this claim. On October 21, 1993, Petitioner also went to the Florida Commission on Human Relations and spoke to an in-take counselor. He did not file a claim but wanted advice because he believed the problems he and other blacks were experiencing at work were due to racial discrimination. On November 16, 1993, Petitioner made a certain pizza delivery and inadvertently failed to turn in $8.55 when he checked out that night. Milton Finkelstein, the assistant manager on duty, realized after Petitioner left for a two-day vacation that the store was short by that amount. Mr. Nelson was not on duty that evening. Mr. Nelson returned to work on November 17, 1993, but Mr. Finkelstein had the day off. Mr. Nelson did not determine which driver was responsible for the missing money until Mr. Finkelstein returned to work on November 18, 1993. Petitioner lived very close to the store but had no telephone. On occasion, a driver was sent to Petitioner's house to ask him to report to work. However, Petitioner let the managers know that he did not want to be bothered at home when he was off. Petitioner did not return to work until November 19, 1993. Mr. Finkelstein showed the ticket for the missing money to Petitioner who confronted Mr. Nelson in the office. Because Petitioner denied that he made the delivery, Mr. Nelson called the customer who thought a black man delivered the pizza three days before. Petitioner was the only black driver on duty at store number 5131 on November 16, 1993. Petitioner's testimony that he worked at another Domino's Pizza store for most of that evening is not persuasive. After the telephone call, Mr. Nelson insisted that Petitioner would have to reimburse the store for the missing $8.55. Mr. Nelson also told Petitioner that he would have to pay future missing receipts even if management did not identify Petitioner as the responsible driver for three days. Petitioner began to argue loudly and yell at Mr. Nelson. As Petitioner stormed out of the office, he screamed back, "Fuck you, Scott," repeating it several times. Three employees in the front of the store heard Petitioner make these statements. Mr. Nelson then told Petitioner to, "Go get your money. Go get your mileage." Mr. Nelson was upset at the time of this incident because it was the most threatening scene that had ever occurred in the store. Petitioner and Mr. Nelson had argued in the past but Petitioner had never been so openly defiant. Mr. Nelson intended to take some disciplinary action but did not make an immediate decision to fire Petitioner. Petitioner's testimony that Mr. Nelson fired him before he yelled profanities is not persuasive. When Petitioner left the store on November 19, 1993, he had cash from that day's deliveries that belonged to the store. Mr. Nelson sent Mr. Finkelstein and another employee to Petitioner's home to retrieve the cash. Upon their arrival, Petitioner was uncooperative and verbally abusive. They returned to the store without the cash. Mr. Nelson called Mr. LeStourgeon, to advise him of the situation and ask him what, if any, disciplinary action should be taken. Mr. LeStourgeon directed Mr. Nelson to do what was necessary to retrieve the day's receipts and fire Petitioner for insubordination. Mr. Nelson called the Tallahassee Police Department. Two police officers interviewed Mr. Nelson then went to Petitioner's house. The officers returned to the store without the cash receipts. There is no evidence that Mr. Nelson ever signed a complaint. About 1:30 a.m. on November 20, 1993, Petitioner voluntarily returned to the store and gave the cash receipts from November 19, 1993, to Mr. Nelson. He did not pay the $8.55 which he owed the store. Petitioner inquired whether he was fired. Mr. Nelson informed Petitioner that he was fired for insubordination. Petitioner did not hire black people to work in the store then cut back their hours or fire them in order to replace them with more recently hired white people. Testimony to the contrary is not persuasive. Mr. Nelson was more than just insensitive at times to other people's feelings. He often failed to conduct himself in a professional manner. He had difficulty supervising and working with white and black employees. He no longer works for Petitioner as a store manager. Regardless of Mr. Nelson's inappropriate behavior and lack of management skills, his decision to report Petitioner's insubordinate conduct to Mr. LeStourgeon was not motivated by intentional racial discrimination. Rather, Mr. Nelson sought the advice of his superior because of Petitioner's gross insubordination: (1) he cursed the store manager in front of other employees; (2) he refused to pay $8.55 for the pizza delivered on November 16, 1993; (3) he refused to promptly turn in the cash receipts from November 19, 1993 upon request; and (4) he verbally abused the assistant manager and the other employee who attempted to retrieve cash receipts. Competent persuasive evidence indicates that Mr. LeStourgeon made the decision to fire Petitioner based on his conduct alone with no knowledge of Mr. Nelson's policies regarding profanity or vulgarity. Mr. Nelson's racial prejudices, if any, were unknown to Mr. LeStourgeon and not a consideration in the employment decision. Moreover, Mr. LeStourgeon would have fired Petitioner because of his blatant insubordination and threatening attitude even if he had been aware that Mr. Nelson had tolerated similar conduct in the past. The same decision would have been reached absent the presence of Mr. Nelson's alleged discriminatory motive. There is no evidence that Petitioner replaced Petitioner with another driver, white or black. Mr. Nelson hired Mr. Finkelstein's daughter, a white person, while Petitioner was still working for Respondent. She backed into a customer's car in the parking lot. Respondent gave the customer twenty-five free pizzas for damage to his car because Mr. Finkelstein agreed to pay Respondent for the pizzas. Mr. Finkelstein subsequently reimbursed Respondent. This incident does not show favoritism for white employees. During 1993, Respondent had approximately twenty-three (23) employees at store number 5131. Of those employees, sixteen (16) were white, five (5) were black, and two (2) were Hispanic. Petitioner was the only employee fired from Respondent's store number 5131 in 1993.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor or the witnesses, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Respondent did not discharge or otherwise discriminate against Petitioner on account of his race and dismissing the Petition for Relief. RECOMMENDED this 29th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 29th day of June, 1995. APPENDIX The following constitutes specific rulings on the Petitioner's Proposed Findings of Fact pursuant to Section 120.59(2), Florida Statutes. Respondent did not file Proposed Findings of Fact. Rejected. Testimony of management concerning this point is more persuasive. Rejected. See paragraph 20. Accepted as modified in paragraphs 5-7. Accepted as modified in paragraph 8. Rejected. See paragraphs 16-17. Rejected. Not supported by competent persuasive evidence. Rejected. See paragraph 30. Accepted as modified in paragraphs 5, 10, and 12. Reject the last sentence entirely as argumentative. Rejected. See paragraph 30. Rejected. See paragraph 16. Rejected. See paragraph 16. Rejected. See paragraph 25. Rejected. See paragraph 22. Rejected as not supported by competent persuasive evidence. Rejected. No evidence that Petitioner applied for promotion. COPIES FURNISHED: Lenny Fulwood, II 790 El Dorado Street Tallahassee, Florida 32304 Thomas Bean President of Seminole Pizza, Inc. 6005 Benjamin Road, Suite 100 Tampa, Florida 33643 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue The issue is whether Respondent, a restaurant, unlawfully discriminated against the Petitioner, who is African-American, by refusing to serve her because of her race.
Findings Of Fact At approximately 2:25 p.m., on July 2, 2003, Petitioner, an African-American resident of Minneapolis, Minnesota, entered the premises of a Denny’s Restaurant located at 14697 Duval Road, Jacksonville, Florida, to eat a meal. Petitioner had spent the previous night in Gainesville, Florida, and had interviewed for a position with the City of Gainesville that morning before driving to Jacksonville to fly home to Minneapolis. Petitioner approached the wait stand and waited approximately three minutes to be seated. Petitioner noticed only five guests in the restaurant at the time she was seated, all of whom were Caucasian. Petitioner was seated close to a Caucasian family of four and a single Caucasian male seated at another table. Petitioner did not claim that she had been segregated in the restaurant, and admitted that she had been seated close to tables with customers of other races. Immediately after being seated, Petitioner asked the hostess for a cup of hot water with lemons, which was promptly delivered to her by the hostess. Petitioner was treated respectfully by the hostess. After the hostess left, Petitioner drank her beverage while she reviewed the menu and waited to be greeted by her server and to have her order taken. Although there appeared to be three servers in the restaurant at the time of Petitioner’s visit, only one appeared to be serving. The others appeared to be completing their “side work,” that is, restocking and end-of-shift cleaning duties. The only person actually serving customers during Petitioner’s visit was Rhonda Nicks, a Caucasian woman. The restaurant was short staffed during this period due to a shift change and another server’s failure to show for her shift. While she waited to be served, Petitioner observed that two Caucasian women entered the restaurant, were seated, and were promptly served by Ms. Nicks who appeared to be the only server in the restaurant. Petitioner next observed as a Caucasian man and woman entered the restaurant, were seated, then promptly had their drink and food orders taken and served by Ms. Nicks. After waiting 20-25 minutes, and not having her food order taken, or even being acknowledged by the server, Petitioner went to the cashier’s stand where she was met by Audrey Howard, an African-American employee of the restaurant, who asked Petitioner if she wanted to see a manager. Petitioner replied that she did want to see a manager, and one was summoned. After waiting a few minutes, Petitioner was greeted by a Caucasian manager who identified himself as Mike Kinnaman. After speaking with Petitioner, Mr. Kinnaman offered to immediately put in Petitioner’s food order, to even cook the meal himself, and to provide the meal at no charge. Petitioner refused Mr. Kinnaman’s offer, stating that she had to return her rental car at the airport, then catch a flight. Mr. Kinnaman then offered Petitioner a business card on which he wrote “1 free entrée, 1 free beverage, 1 free dessert . . . Unit #1789." Mr. Kinnaman told Petitioner that she could use the card for a free meal at another time. This offer was made based upon the manager’s belief that Petitioner did not have time to eat and needed to leave for the airport. After speaking with the manager, Petitioner left the restaurant at approximately 3:00 p.m. She drove the short distance to the airport, removed her luggage and belongings from the rental car, turned in the car, and received her receipt which showed that she had turned in the car at the airport Hertz location at 3:20 p.m. Although Petitioner told the Respondent’s manager that she had to leave to catch a flight, the evidence showed that Petitioner’s flight was not scheduled to leave for another four hours. Petitioner’s rental car receipt documented the fact that she had a two-day rental and could have kept the car for almost another full day. Petitioner was in no jeopardy of incurring additional rental car charges or of missing her flight when she hurried from the restaurant at 3:00 p.m. Although Petitioner observed only nine other customers in the restaurant while she waited to be served, Respondent’s records and the testimony of Audrey Howard, a former cook at Respondent’s restaurant, 24 customers were served in the restaurant between 2:00 and 3:00 p.m. on the day of Petitioner’s visit. Although Petitioner testified that she was the only African-American customer in the restaurant, Ms. Howard recalled a table of two African-American patrons who were served during the time period when Petitioner was in the restaurant. She specifically recalled these patrons because the gentleman returned his omelet to the kitchen, asking for more cheese. During her time in the restaurant, Petitioner observed only five employees. Respondent’s records demonstrate that 14 hourly employees were in the restaurant between 2:25 and 3:00 p.m. From where she was seated in the restaurant, it is likely that Petitioner could not see every customer and employee in the restaurant. Petitioner never attempted to call a server over to her table, nor did she ask the hostess to either take her order or ask a server to provide her with service while she waited. Petitioner did not complain to the manager that she had been discriminated against. She complained that she had received poor service. Respondent requires training for all of its employees on diversity and discrimination issues before they are allowed to work for Respondent. Every server who testified at hearing had specifically undergone diversity and discrimination training. Although Respondent has a history of past discrimination against African-Americans as evidenced by a consent decree entered into by the company with the United States Justice Department, it has since received national awards and recognition for its strides in the areas of discrimination and diversity. Respondent takes claims of discrimination very seriously, and has a zero tolerance standard for acts of discrimination by its employees. Respondent’s managers are required to report all claims of racial discrimination to a 1-800 hotline. No call was made by the manager in this case because he did not believe that a claim of discrimination had been made by Petitioner when she claimed she had received poor service. Petitioner offered no evidence that she had suffered damages as a result of the poor service she received at the restaurant.
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 Ms. McAdory's Petition for Relief. DONE AND ENTERED this 20th day of December, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan S. Erdelyi, Esquire Marks Gray, P.A. Post Office Box 447 Jacksonville, Florida 32201 Charlene McAdory 417 Oliver Avenue North Minneapolis, Minnesota 55405 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
