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
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
Findings Of Fact Petitioner, James A. Wade, Jr., began employment with Respondent, Li'l General Stores, Inc. (Li'l General), on October 4, 1979. He had responded to an advertisement in the Orlando, Florida, newspaper for applicants for its management candidate program, one of the criteria for which was a college degree. There was no other training called for as a prerequisite, though an examination was required. Petitioner was a college graduate with a bachelor of science degree in Business Administration. The examination Petitioner took showed he lacked adequate retail experience, but he was kept in the program with the understanding he would be retested within one year. Though Petitioner requested retesting of his superior several times (he contends at least six), he was never retested, and whenever he requested retesting, he was told the prior failure to do so was an oversight and that someone would be up to test him in a few days. No one ever came to do so, however, even though Respondent's division manager over Petitioner, Val Draper, admits he recommended that Petitioner be retested. Petitioner worked for Respondent for two and one-half years as a store manager, even while awaiting retesting, having overall supervision of the stores in his charge. His immediate supervisor during the majority of this time was Ed Curtis, who, Petitioner contends, rated him on several occasions. All of these ratings, he contends, were good even though, for the most part, they were oral ratings not reduced to writing. There is, however, included in Respondent's Composite Exhibit A, a "Training Supervisor Orientation Program Training Report" dated January 20, 1981, and signed by Harry Economou, a training supervisor for Respondent, which bore "good" ratings (the highest available) in all four rated areas and the additional comment, "qualified for training supervisor." It is also noted that a payroll change form signed by Ed Curtis on December 17, 1980, when Petitioner was given a promotion and pay raise from $4.40 per hour to $4.80 per hour, bears the comment, "James has been doing a good job as manager at Store 1402-69 and is being transferred to Store 1402-44 (later properly identified as Store 1402-09), as the training store manager." During all this time, claims Petitioner, the position he wanted in the management candidate program was still open, as evidenced, he states, by the fact that the recruitment advertisements were still being run in the commercial paper and the position was listed in the internal newsletter received in the store. The management candidate program trains personnel for employment as district managers. The store manager positions he held do not come within the program. During the last two weeks of his employment with Respondent, Petitioner worked for a Ms. Porter, who replaced Mr. Curtis as District Manager, the position he had wanted. She came to his store several times during this period, at which times Petitioner asked her about his retesting. He finally told her if he was not retested, he would go to the "EEOC." It was at this point, he contends, his troubles began. Within a short while of his former comment to Ms. Porter, his store was audited on January 5, 1982, by Respondent's personnel, who found a shortage of in excess of $1,800.00. On the same day, Ms. Porter gave Petitioner a memorandum on the security of the cigarette cabinet, referring to a discussion they had had the week previous on the same subject. This memorandum also reflects two handwritten notations dated January 8, 1983, that the cabinet was found unlocked at 6:00 p.m. that date. Petitioner contends that in the oral discussion with Ms. Porter about the cigarette cabinet, she merely told him to keep it locked. He contends he was not told then that any disciplinary action would be taken against him for failing to do so. That argument is not persuasive, however, as the Respondent's Employee Rules of Conduct clearly reflect "automatic discharge" as the penalty for any "gross negligence which results in substantial cash loss," and permit suspension or termination for "failure to control inventory shortages." Though there is no direct evidence Petitioner was given a copy of this, presumably he was. As to the audit shortage, Petitioner contends that, based on the inventory methods utilized by Respondent, there is no way to show what items are missing--only a dollar amount and that the failure to control security of the cigarette cabinet could not have accounted for the $1,800.00 loss because his physical count of the cigarettes done when Ms. Porter talked with him the first time it was left open revealed the only cigarettes not in there were an off brand which had been sold. Mr. Draper, on the other hand, indicates that shortages can generally be identified through a comparison of section counts to the reports of previous audits. Cigarette and beverage cooler counts are done in the stores on a daily basis. Audits are conducted by a professional auditor who physically counts the store (inventory) and compares that count with the Division figure. While there was no showing by direct evidence that this was done here, again, presumably a regular procedure was followed here. Petitioner also attacks the accuracy of the shortage found in the audit through his testimony that approximately ten days before the audit, he had trouble with the cash register in the store, and for approximately four days, he had no working cash register. Petitioner contends he reported this to Ms. Porter and also called the supplier, who, he contends, called the Respondent corporation to get permission to put in a noncompany register while the broken one was being fixed. This offer was reportedly refused by Respondent. Again, there is no direct evidence that this happened with the recitation coming only from Petitioner, and Mr. Draper contests this. The ultimate responsibility for insuring a store has a cash register lies with the District Manager, and it is Draper's policy to either have the machine fixed on the spot or replaced with a loaner from Respondent's stocks. To the best of Draper's knowledge, this store was not left without a register for four days. He cannot, however, equivocally state what Petitioner contends is not true. Weighing the probabilities, however, the scale here tilts in favor of Respondent. It is not likely that a firm so large as Respondent, whose operation is so open to theft and pilferage as this is, would allow one of its stores, which evidence shows does from $15,000 to $30,000 per month in business, to go without a cash register for 4 1/2 days. Petitioner contends, as an additional basis for his complaint, that he did not receive a pay raise during the 2 1/2 years he was employed by the company and that all he received was a gas premium and pay for a management trainee. He further contends that all of the Caucasian store managers received higher pay raises than he. This latter contention is rebutted in documentation submitted by Respondent without objection by Petitioner which indicates that of 20 store managers listed, only four were earning more than Petitioner and one of those had prior convenience store experience. As to the former, it appears that on December 11, 1980, Petitioner was given an hourly pay raise from $4.40 to $4.80. The increase is identified as "salary" and "hourly," not to gas premium, and is justified by his transfer to another store and assignment as a training store manager. With the increase in responsibility goes the increase in pay. Petitioner contends that when he was discharged, he was given no reason for that action by Ms. Porter or Mr. Draper when he went to Draper's office to request one. He was terminated on January 12, 1982, by Ms. Porter, who on the Employee Action form listed as reasons therefor violations of company policy and continued poor performance, inter alia. It is not known whether these reasons were communicated to Petitioner, but from the state of the evidence, it may be concluded he was not. However, Ms. Porter's reasons for taking the termination action are clearly outlined in her memorandum relating to Petitioner found as the first attachment to Respondent's Composite Exhibit, admitted without objection of the Petitioner. This memo reflects a lack of leadership by Petitioner in correcting his employee attitude and performance and substandard performance in both store condition and the accomplishment of paperwork. The factor culminating in Petitioner's discharge is the repeated failure to control the cigarette cabinet, and Petitioner's contention that it was his assistant manager who was the culprit does not excuse him. As the manager, he was the responsible party and must bear the consequences of his failure to shoulder that responsibility. This situation is not offset by the fact that he had previously warned Ms. Porter that one of his employees had a record of dishonesty and was prevented from discharging this person, who, it must be added, was working in the store during the period of the inoperative register. 13,. Mr. Wade also contends that on one occasion, he was advised (by whom is unknown) that he must transfer to a different store located in a tough, black neighborhood because he is black. He refused the voluntary reassignment and states that while he was subsequently on vacation, he was involuntarily transferred there and told that if he wanted to stay with the company, he would have to accept the assignment.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT the Petition of James A. Wade, Jr., be denied. RECOMMENDED this 29th day of May, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1984. COPIES FURNISHED: Diana Kilpatrick, Esquire Post Office Box 2009 Daytona Beach, Florida 32017 Mr. Phillip S. Youtz Personnel Manager Gold Coast Region Li'l General Stores, Inc. 4191 North State Road 7 Lauderdale Lakes, Florida 33319 John R. Ficarro, Esquire Post Office Box 13198 Tampa, Florida 33681 Aurelio Durana, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue The issues are whether Petitioner timely filed her Petition for Relief, and if so, whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her race.
Findings Of Fact At all times material to this proceeding, Respondent operated a convenience store (the store) in Havana, Florida. In July 1998, Respondent hired Petitioner, a black female, as a midnight shift cashier for the store at $5.50 per hour. Charles Nichols, the store manager, made the decision to hire Petitioner. In addition to Petitioner and the store manager, Respondent employed five or six other cashiers--one American Indian female, one Hispanic male, two white females, and one or two white males. Petitioner was Respondent's only black employee. As part of her work orientation, Mr. Nichols furnished Petitioner with a copy of a cashier's job duties, which she signed and dated July 8, 1998. Mr. Nichols also provided Petitioner with other hiring and orientation information, including but not limited to, an employee handbook explaining Respondent's anti-discrimination policies. Mr. Nichols was responsible for the day-to-day operations at the store. Petitioner admits that Mr. Nichols was the best boss she ever had, at least until September 7, 1998, when Respondent terminated her employment. Shortly after she was hired, Petitioner's payroll check failed to include some overtime work. Mr. Nichols advanced or loaned Petitioner the correct amount out of his own pocket until the mistake could be corrected. On another occasion, Petitioner intentionally left her midnight shift (11:00 p.m. to 7:00 a.m.) two hours early, leaving a new trainee (Jason Smith) in charge of the store. While such conduct was unacceptable, Mr. Nichols decided to counsel Petitioner instead of terminating her. Petitioner complained about working the midnight shift due to her family responsibilities. Mr. Nichols attempted to accommodate Petitioner by scheduling her to work the evening shift (3:00 p.m. to 11:00 p.m.) when possible. Respondent hired Jason Smith to work at the store as a cashier shortly after Petitioner began her employment. In early September 1998, Mr. Nichols and Respondent's regional manager, Clev Mathias, promoted Jason Smith to assistant store manager. An assistant store manager has many of the same day- to-day duties and responsibilities as the store manager. The assistant store manager acts as store manager when the manager is not present. Accordingly, the assistant store manager's duties include being responsible for the entire store operations, supervising employees, and directing the cashiers in the performance of their duties. The assistant manager does not make final decisions related to personnel matters. Instead, an assistant manager may recommend that the store manager take disciplinary action, including termination. Generally, only one employee is on duty during the evening and day shifts at the store. Respondent assigns two employees to work the midnight shift. However, during busy times, like Friday and Saturday nights, Respondent assigns a floor person (which is an additional employee) to the evening shift to assist with some of the cleaning duties. In 1998, Respondent insisted that its employees keep the store clean and presentable to customers. The company's mission statement was "selling fresh products in a clean and bright store." The mission statement meant that the store should sparkle and shine as much possible. In order to ensure compliance with its cleanliness policy, Respondent used mystery shoppers to conduct "Pride Ride" inspections. Employees received awards for clean stores, which usually resulted in better sales. Therefore, it was "imperative" that every employee working on every shift, including the store manager, perform basic cleaning duties. In fact, one of the essential job duties of a cashier was to "maintain the cleanliness and appropriate image of entire store, inside and out." At a minimum, Respondent expected its employees to mop the high traffic areas, keep the food counters and fountains clean and presentable to customers, keep the Parrot Ice machine operational and clean, and keep the cooler stocked and cleaned. These were basic cleaning duties which did not have to be posted on the store's bulletin board as special cleaning duties. If an employee working on one shift failed to perform the basic cleaning duties, the employee on the next shift would have to do the work, creating "double cleaning" duties for the new shift. Employees were not supposed to leave the premises after a shift until the store met the cleanliness standard. The evening shift was generally busier than the midnight shift at the store. The average sales volume for an evening shift was between approximately $300 to $500 per hour. On Sunday nights, the average volume would be approximately $200 to $400 per hour. However, during a busy time, the evening shift may have a sales volume of approximately $500 to $700 per hour. On Sunday, September 6, 1998, Petitioner was assigned to work the evening shift for the store. She was the only employee assigned to work that shift. The employees that were assigned to the subsequent midnight shift and who would be relieving Petitioner were Rodney Smith (Jason Smith's father) and Marie Sargent. Rodney Smith usually showed up early for his assigned midnight shift. He arrived at the store at approximately 10:00 p.m. on September 6, 1998, and observed that the store was not clean. As Rodney Smith began filling and cleaning the Parrot Ice machine, he noticed that Petitioner appeared to be socializing with a male at the counter for an extended period of time. Accordingly, Rodney Smith paged the assistant manager, Jason Smith, so that he could see the condition of the store. Jason Smith worked the day shift at the store on September 6, 1998. When he finished his shift and when Petitioner began her shift at 3:00 p.m., the store was clean. Jason Smith remained in the store's office for a while after his shift ended. On two occasions, Jason Smith's use of the office phone caused a delay in Petitioner's ability to operate the credit card machine. The first time, Petitioner stepped to the office door and asked Jason Smith to hang up the phone. The second time, Petitioner yelled from the cash register telling Jason Smith to hang up the phone. Jason Smith agreed but told Petitioner the she should not yell. At approximately 7:30 p.m. on September 6, 1998, Jason Smith's girlfriend picked him up for a date. The store was clean when he left the store. Jason Smith was leaving the home of his girlfriend's parents when he received the page from Rodney Smith at approximately 10:07 p.m. After receiving the page, Jason Smith proceeded immediately to the store. When Jason Smith arrived at the store, he also noticed that Petitioner was behind the counter talking to a male. Jason Smith checked with Rodney Smith to make sure there was no emergency (such as a robbery, fire, etc.) and was told to look at the condition of the store. Jason Smith then proceeded to inspect the convenience store and noticed that the condition of the store was unacceptable. Specifically, Jason Smith noticed the following: That the floor, especially in the high traffic areas, had not been mopped and was very dirty. That the drink fountain had not been cleaned and there was ice on the floor and counter. That the hot dog machine had not been cleaned and the hot dogs that were in the machine had burned. That the Parrot Ice machine was beeping which indicated that it had not been filled with liquid and also, because the machine had been left on, the Parrot Ice liquid had continued to dispense the product onto the machine and then onto the floor. That the cooler had not been stocked. The condition of the store at the time Jason Smith inspected it on the night of September 6, 1998, was in violation of Respondent's policy regarding cleanliness and store image. Jason Smith also noticed that Petitioner continued to lean on the counter talking to the male while he inspected the store. Jason Smith then called Mr. Nichols to let him know about the unacceptable condition of the store. Jason Smith wanted Mr. Nichols's advice as to the appropriate response to the situation. Mr. Nichols instructed Jason Smith to run an X-2 report from the cash register. The purpose of running the X-2 report was to determine the volume of sales for the store in the last hour. If the volume of sales was unusually high, it would mean that Petitioner had been too busy with customers to perform the regular shift cleaning duties. A high volume of sales would have explained the unacceptable condition of the store. As instructed by the store manager, Jason Smith ran the X-2 report which indicated that the store had only $50 of sales during the last hour on the evening shift. This small amount of sales during the past hour would not have prevented Petitioner from performing the basic cleaning duties required for that shift. When Jason Smith first attempted to run the X-2 report, Petitioner immediately became belligerent and hostile and was very upset that Jason Smith was trying to run this type of report on the register. She then called Mr. Nichols to complain about the situation. Jason Smith communicated the result of the X-2 report to Mr. Nichols. The store manager then informed Jason Smith that he should instruct Petitioner to perform the basic shift duties necessary to clean the store and to get the store in acceptable condition before she left her shift that night. Based on the instruction from the store manager, Jason Smith gave Petitioner verbal instructions to perform certain basic cleaning duties of a cashier, including filling the Parrot Ice machine and mopping and sweeping the high traffic areas. Since his initial inspection of the store, Jason Smith noticed that beer bottles had spilled and were broken in the cooler which created an additional mess. Therefore, his instruction to Petitioner included stocking and cleaning the cooler. To ensure that there was no confusion about the instructions, Jason Smith provided Petitioner specific written instructions to perform these basic duties. When Petitioner received these verbal and written instructions, she once again became very agitated and belligerent. Petitioner was loud and obnoxious to Jason Smith, using profane language in front of customers and another employee. In response to Petitioner's hostile reaction, Jason Smith confirmed to Petitioner that she would have to perform these basic duties before she left the store that night. Jason Smith left the written instructions in the store's office. On the reverse side of the list, Jason Smith wrote Mr. Nichols a note regarding Petitioner's hostile attitude. Jason Smith then left the store because his presence seemed to aggravate Petitioner. After Jason Smith left the store, Petitioner continued to complain about Jason Smith in front of customers. She wrote Mr. Nichols a note stating that she wanted a transfer to another store because she would not work under Jason Smith anymore. She did not perform the duties that were specifically assigned to her by Jason Smith before she left her shift that night. The next day, on September 7, 1998, Mr. Nichols reviewed the handwritten note from Jason Smith indicating that Petitioner refused to perform the duties. Mr. Nichols also confirmed with Rodney Smith that these events had occurred as described. Mr. Nichols then had a discussion with Jason Smith to determine how to handle the situation with Petitioner. According to Respondent's policy, Petitioner's conduct on September 6, 1998, was such that termination was appropriate. Recognizing that any employee could have a bad day, Mr. Nichols and Jason Smith decided that they wanted to give Petitioner an opportunity to explain her conduct on September 6, 1998. Therefore, Mr. Nichols called Petitioner to come to the store and talk with them about the situation and her conduct on September 6, 1998. Upon arriving at the store to meet with Jason Smith and Mr. Nichols, Petitioner continued to respond in a hostile and belligerent tone. She refused to provide them any explanation for her conduct on September 6, 1998. Specifically, Petitioner did not explain the following: (a) her refusal to perform the assigned duties; (b) her refusal to follow a direct order from the assistant manager; and (c) her belligerent and hostile attitude against the assistant manager in front of customers and other employees. Based on Petitioner's conduct on September 6, 1998, and her further refusal to provide an adequate explanation for her conduct, Jason Smith recommended to Mr. Nichols that Respondent terminate Petitioner. Mr. Nichols agreed with the recommendation, terminating Petitioner's employment based on her insubordination and refusal to perform job duties. Respondent's regional manager approved Mr. Nichols's decision to terminate Petitioner. Mr. Nichols and Jason Smith prepared and signed an employee conference summary report on September 7, 1998. When they presented the report to Petitioner, she refused to sign it. Mr. Nichols also prepared and signed a final personnel action record on September 7, 1998. The personnel action record documents Petitioner's termination effective September 7, 1998, for "insubordination, refused to perform duties."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 SUZANNE F. HOOD 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 19th day of September, 2002. Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Georgia A. Miller Post Office Box 156 Calvary, Georgia 39829 Cecil Howard, Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner was terminated because of his race, black, in violation of the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2001) (hereinafter FCRA).
Findings Of Fact The Petitioner, a black male, began his employment with Respondent in August 1999 as a truck driver. He was discharged on or about July 25, 2003. The Petitioner's personnel file reflects that he had an accident on January 20, 2000, during which he hit the front gate at the store. The gate was damaged, as reflected in the picture. The Petitioner's personnel file reflects an accident on May 22, 2001, in which he drove a forklift into power lines at a customer’s jobsite and damaged the lines and the customer’s satellite dish. The Petitioner was warned on numerous occasions by the safety coordinator and store manager about his failures to follow company safety procedures and policies. The Petitioner received a written warning on June 21, 2002, for his failure to wear his safety harness. All of the Respondent’s employees are required to wear a safety harness when working on aerial work platforms because of fatalities suffered by employees working on aerial work platforms without wearing their safety harness. The Petitioner had been verbally warned on numerous previous occasions to wear his safety harness, and it had been a topic at the safety meeting held on June 5, 2002. The Respondent enforces its safety policies to protect its employees and the public. The Petitioner continued to disregard company safety policies despite warnings. Larry Sutton, the Petitioner's supervisor, testified on cross-examination that he told the Petitioner several times that the Petitioner needed to start complying with the safety policies or his job would be in jeopardy. On December 9, 2002, the Petitioner drove a truck into and ripped the side of the metal warehouse at the store. An incident report was placed contemporaneously in the Petitioner’s personnel file. On January 16, 2003, the Petitioner drove over a scissor lift cover that was resting on the concrete pad next to the shop building. This pad was not supposed to be driven over. This accident was the result of the Petitioner’s failure to obey rules regarding vehicle operation on the premises. The Petitioner was not denied any raises because of his race. The Petitioner was hired at a rate of $10.00/hour and was earning $12.50/hour by September 2000. The Petitioner presented no evidence of any similarly situated people being treated or paid differently than he. On March 17, 2003, while attempting to pick up equipment from a customer’s worksite, the Petitioner got the equipment stuck in the mud and proceeded to try to winch it out of the mud by himself. His efforts caused the equipment to turn over, damaging the customer’s property, shearing a temporary power pole, spilling hydraulic fluid and fuel on the customer’s property and damaging the equipment. The store manager received a phone call from the customer complaining about what the Petitioner had done. The Respondent's store manager sent Thomas Rhoades, a field service mechanic, to the customer’s property to repair the damage caused by the Petitioner and to deliver a generator to the customer free of charge. See Respondent’s Exhibit 24. Pictures of the scene taken by Rhoades were placed in the Petitioner’s personnel file. See Respondent’s Exhibit 22. A written statement of his findings was provided by Rhoades and placed in the Petitioner’s personnel file. See Respondent’s Exhibit 23. During 2003, the Petitioner was entitled to three sick days, two personal days and 10 vacation days. The Petitioner had used up all of his sick, personal and vacation days by May 9, 2003, and yet missed an additional five days of work prior to his termination. See Respondent’s Exhibit 3. The Petitioner rarely provided advance notice of his absences, which caused severe staffing problems at the store. The Petitioner told Mr. Frye that he intended to take off Mondays, the busiest day of the week, to inconvenience the store manager and dispatcher. In addition to his attendance problems, the Petitioner also violated the Respondent’s Absenteeism or Tardiness Policy. The Petitioner admitted that he had received and understood that policy. See Respondent’s Exhibit 5 and 6. The Petitioner received a written warning for violation of the policy on June 18, 2003, which documented that the Petitioner had received verbal warnings in the past for violating this policy. See Respondent’s Exhibit 4. The Petitioner received a second written warning for safety violations on June 4, 2003. He was observed entering the store yard with equipment improperly tied to the bed of his truck and wearing his safety harness upside down. See Respondent’s Exhibit 14. The Petitioner had been warned about this on numerous occasions, including a verbal warning from the safety coordinator on June 2, 2003. The Petitioner frequently drove too fast through the yard and took poor care of the Company’s equipment. The Petitioner’s poor care of the equipment created additional work for the mechanics. Despite repeated verbal and written warnings about failure to follow store safety procedures and guidelines, the Petitioner continued to refuse to take such safety maintenance seriously. On Friday July 25, 2003, the Petitioner returned to the store at the end of the day with a load of equipment that he left on his truck. He did not report for work on Monday July 28, 2003, even though he was scheduled to work that day. When a service technician was sent to unload the Petitioner’s truck, he discovered that the load had been improperly tied down in such a way that, not only did it pose a safety risk, but it also damaged the equipment. This was called to the attention of the store manager and safety coordinator. Pictures were taken of the way the equipment was tied down and the damage to the equipment. See Respondent’s Exhibit 25. An Incident Report was prepared and placed in the Petitioner’s personnel file. See Exhibit 16. Following the incident on July 25, 2003, the store manager decided to terminate the Petitioner’s employment because of his attendance problems, safety problems, numerous accidents to include the incident on July 25, 2003. Prior to making that decision, the store manager consulted with the Respondent’s Regional Human Resources Manager, Sean O’Halloran. Mr. Cook and Mr. O’Halloran reviewed the Petitioner’s personnel file and the reasons for termination. Mr. O’Halloran approved of the termination decision. Mr. Cook also consulted with his assistant manager and safety coordinator, Chris Smith, who also approved the decision to terminate the Petitioner’s employment. Mr. Cook, the individual who terminated the Petitioner, had been the Petitioner's store manager since May 2002. The Respondent demonstrated that it had a legitimate, non-discriminatory reason to discharge Knott. The Petitioner did not establish that he was treated differently than other similarly situated non-black employees. Although the Petitioner testified that he was not given a gate key, both he and Mr. Sutton identified Mr. Frye, a black male, as someone who had received a gate key. The Petitioner presented no evidence that the non- discriminatory reason for his discharge was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the Petitioner’s charge of discrimination. DONE AND ENTERED this 10th day of December, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2004. COPIES FURNISHED: Lester J. Knott 6312 Mockingbird Lane Pensacola, Florida 32503 Steven A. Siegel, Esquire Fisher & Phillips LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner worked for Golden Crust Bakery, Inc. at Grants Bakery, one of seven retail stores owned by Respondent, for approximately one week and was terminated by direction of Kenneth Judd, manager of Golden Crust Bakery, Inc. Ms. Confer had been hired by the manager of Grants, Ms. Collachio, as a sales clerk. Each day the sales clerks run a tally on their sales and it should match with the cash register receipts. When Petitioner's accounts failed to balance every day of the one week she worked at Grants, Judd told Mrs. Collachio to let her go. On one occasion Petitioner was told by Ms. Collachio that she couldn't hear the customers when her back was turned to the customers. At the time Judd directed that Ms. Confer be fired he had no knowledge that she had a hearing problem. At the hearing Ms. Confer presented no evidence that she had a hearing disability. Her only testimony was that she was told by Ms. Collachio that when she turned her back to the customers she couldn't hear the customers and Ms. Collachio would have to let her go.
The Issue The issue in this case is whether Respondent, Winn Dixie, discriminated against Petitioner, Simon Rowland, on the basis of his disability (cerebral palsy) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is an elderly man who has had cerebral palsy since birth. In August 2004, Petitioner went to work at the Dundee, Florida, Winn Dixie store as a courtesy clerk or bagger. His duties were to retrieve shopping carts from the parking lot, help customers, clean restrooms, and other general duties. He was not as fast a worker as others, but Winn Dixie accommodated him so that he could continue working. Petitioner claims that he was initially told he would work 20 to 25 hours per week. Winn Dixie asserts that he was given no indication of hours he might work. It is clear that Petitioner worked approximately ten hours per week during his employment. Lora Prine was the manager of the Dundee store, and Petitioner enjoyed working with Prine. Prine was later transferred to the Winter Haven store, and Petitioner asked to be transferred there, as well. There was no position open at first, but when a position became available, Prine contacted Petitioner to apply. When he was hired at the Winter Haven store, Petitioner was told that he would average between ten and 15 hours per week. While Petitioner was working at the Winter Haven store, Prine would make sure that his duties were consistent with his capabilities. She would make sure that Petitioner had assistance when lifting heavy objects, for example, when he was bagging groceries. Prine also allowed Petitioner to leave work early on many occasions due to illness and to miss work altogether at times, e.g., when he needed to visit his ailing brother in Gainesville. Petitioner freely admits that Prine and Winn Dixie accommodated him when he was working there. In November 2009, Petitioner was hospitalized for a week. The hospitalization involved an unnamed malady, but Petitioner was adamant that it did not involve a stroke. There is no evidence that Winn Dixie believes Petitioner suffered a stroke at that time. Upon release from the hospital, Petitioner was provided with portable oxygen. He said that the oxygen was supposed to be used while he was sleeping, but he used it a few times during the day right after he got out of the hospital. Prine learned from Petitioner's son that Petitioner was using oxygen. In mid-January 2010, Petitioner called Prine to see about coming back to work. Prine had just returned from medical leave and asked Petitioner to call her back in a few days. When Petitioner called back, he discussed his hospitalization and convalescence with Prine. He informed Prine of his need to utilize oxygen as a result of his illness. Prine suggested to Petitioner that maybe it was time for him to retire; Petitioner agreed with Prine that it was time. Prine annotated Petitioner's work file to indicate he was on retired status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Simon Rowland's, Petition for Relief in full. DONE AND ENTERED this 19th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2011.
Findings Of Fact Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought: So then I got to thinking, once before Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course. So then I got to thinking about this thing. He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16) Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left. Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out." Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/ There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/ Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair. The Respondent currently employs at least 20 people over the age of The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment. Petitioner has remained under a physician's care on a three-months- return-visit basis.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition and denying the prayed-for relief. RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 25th day of November, 1991. 1/ See
