The Issue The issue is whether Respondent discriminated against Petitioner based on his race, national origin, age, sex, and/or disability in violation of section 760.10, Florida Statutes.1
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: PARTIES The Division is an employer as that term is defined in section 760.02(7). Mr. Gonzalez is a white Cuban male older than 40 years old. Out of respect for Mr. Gonzalez’s privacy, the Division stipulated that Mr. Gonzalez suffers from a disability or handicap without requiring him to disclose its nature at the hearing. Mr. Gonzalez has worked for the Division in Tallahassee since April 3, 2015. Mr. Gonzalez was initially hired in an Other Personal Services (“OPS”) capacity as an Operations Analyst I. On June 3, 2016, Mr. Gonzalez received a Career Service appointment to the same position, Operations Analyst I, which remains his position at the Division. Mr. Gonzalez is a switchboard operator. OCTOBER 24, 2019, AND ITS AFTERMATH While Mr. Gonzalez’s complaint broadened over time, the triggering event to his conflict with the Division was a meeting with his immediate supervisor, Operations Service Manager Kimberly Jackson, and several coworkers on the morning of October 24, 2019. Early on the morning of October 24, 2019, Mr. Gonzalez phoned Ms. Jackson to ask if he could take some time off work that morning. Mr. Gonzalez explained that his daughter was having her sick dog put to sleep and that he wanted to be with her because the situation was very emotional. During this conversation, Ms. Jackson told Mr. Gonzalez that she was calling a meeting with all of the switchboard operators later that morning. She left it up to Mr. Gonzalez whether he wanted to miss the meeting. Mr. Gonzalez testified that Ms. Jackson’s manner of giving him the option not to attend the meeting was threatening. He testified that she said, “Well, if you want to play it that way.” He took her message to be that he had better not miss the meeting. Mr. Gonzalez came into work and attended the meeting. Ms. Jackson denied that she said “if you want to play it that way” or anything of the sort. She testified that she told Mr. Gonzalez that he could go be with his daughter. Ms. Jackson was aware that another of her subordinates would also be absent that morning. She planned to discuss the meeting topics with that employee later. She testified that it would not have been a problem to include Mr. Gonzalez in that discussion. At 7:41 a.m. on October 24, 2019, Ms. Jackson sent out a memorandum informing her subordinates of the meeting to be held at 9:00 a.m. The memorandum went out after Ms. Jackson and Mr. Gonzalez spoke on the phone. The timing led Mr. Gonzalez to allege that Ms. Jackson had called the meeting in response to his request for leave, apparently from some malicious desire to prevent him from being with his daughter. Ms. Jackson testified that she had planned to call the meeting before she spoke to Mr. Gonzalez on the phone. The purpose of the meeting was to remind staff of certain office procedures, such as the importance of arriving on time so that the switchboard could begin accepting calls promptly at 8:00 a.m., and the prohibition on excessive personal cell phone use. Ms. Jackson stated that she had no reason for wanting to keep Mr. Gonzalez away from his family. Mr. Gonzalez testified that the meeting was short, no more than five minutes. He sat quietly and listened to Ms. Jackson. When she was finished, he raised his hand to ask a question. Ms. Jackson continually interrupted, making it impossible for him to ask his question. Mr. Gonzalez felt embarrassed and demeaned in front of his fellow employees, but denied ever responding aggressively or in an unprofessional manner. Ms. Jackson gave a vague answer to his question. When he attempted to ask a second question, Ms. Jackson shut down the meeting. Ms. Jackson’s version of the meeting was that Mr. Gonzalez was very unprofessional. He was rude, aggressive, and interruptive. He did not wait for Ms. Jackson to finish before he began peppering her with questions. Mr. Gonzalez constantly asked her to point to agency rules or written policies to support the directives she was giving. Ms. Jackson tried to explain that these were just office procedures that any supervisor can establish, but Mr. Gonzalez would not be satisfied. At one point, he pointed his finger at Ms. Jackson and said, “Ma’am, I listened to you. Now you’re going to listen to me.” Ms. Jackson’s version of events at the meeting is the more credible. Ms. Jackson testified that two newly hired employees were present and she was concerned they would come away with the impression that this was how she conducted meetings. Ms. Jackson testified that Mr. Gonzalez’s behavior at the meeting prompted her to contact her direct superior, Program Administrator Sarah Evans, to discuss the matter. Ms. Evans decided to informally investigate what happened at the meeting. First, Ms. Evans attempted to phone Mr. Gonzalez to get his version. When she was unable to reach him by phone, Ms. Evans sent an email to Mr. Gonzalez asking him to call her. Ms. Evans then proceeded to contact the other employees who were at the meeting. One employee, Tania Membreno, told Ms. Evans that she preferred not to get involved in the matter. Two other employees, Adam Wiman and Stacey Macon, confirmed Ms. Jackson’s version of events. Mr. Wiman told Ms. Evans that the meeting had been “awkward” and that Mr. Gonzalez was rude to Ms. Jackson, continually interrupting her. Mr. Macon told Ms. Evans that he felt uncomfortable during the meeting because Mr. Gonzalez was unprofessional and rude to Ms. Jackson. When Ms. Evans eventually reached Mr. Gonzalez by phone, he refused to give her any information about the meeting without a union representative and Robin Rega, a Department of Health Labor Relations Consultant, present. Mr. Gonzalez hung up on Ms. Evans. Ms. Evans and Ms. Jackson prepared a “supervisor counseling memorandum” to be presented to Mr. Gonzalez because of his behavior at the October 24, 2019, meeting. On October 31, 2019, Ms. Evans and Ms. Jackson met with Mr. Gonzalez and explained that they were providing him with the memorandum as a reminder to remain professional and courteous in the office. Mr. Gonzalez reacted by stating that he was never unprofessional. He attempted to veer the conversation off onto a discussion of another employee whom he believed was unprofessional. Mr. Gonzalez refused to sign the memorandum, though Ms. Evans explained that his signature would only indicate that he had received the document, not that he agreed with its contents. Mr. Gonzalez did agree to take a copy of the memorandum before he left the meeting. The supervisor counseling memorandum was not made part of Mr. Gonzalez’s employment record and did not constitute adverse employment action or disciplinary action against Mr. Gonzalez. It was merely a reminder to Mr. Gonzalez of the behavior and deportment expected of Division employees. The Department of Health’s personnel policy defines “counseling” as “[a] discussion between a supervisor and an employee that identifies a problem, clarifies expectations and consequences, and provides direction for the resolution of the problem.” The Department of Health’s personnel policy does not treat counseling as disciplinary action. Meetings held by supervisors to counsel employees are not considered investigatory interviews, and employees covered by a collective bargaining agreement do not have the right to union representation during counseling meetings. THE GRIEVANCE AND EMPLOYMENT COMPLAINT OF DISCRIMINATION The supervisor counseling memorandum gave Mr. Gonzalez 60 days to respond in writing, if he wished. Mr. Gonzalez decided to file a formal Career Service employee grievance pursuant to section 110.227(4), Florida Statutes. On November 4, 2019, Mr. Gonzalez obtained a grievance form and a copy of the Department of Health’s employee grievance policy from Ms. Rega. On November 12, 2019, Mr. Gonzalez forwarded his completed Career Service employee grievance form, with attached exhibits, to Ms. Jackson via email, with copies to Ms. Evans, Ms. Rega, Mr. Gonzalez’s union representative, and a representative of the FCHR. On its face, Mr. Gonzalez’s grievance complained of “discrimination of age, gender, ethnic [sic].” The six-page narrative attached to the grievance gave Mr. Gonzalez’s version of the events of October 24, 2019, and the subsequent supervisor counseling memorandum. The narrative also alleged that Ms. Jackson had arranged the furniture in Mr. Gonzalez’s office in a way that aggravated his claustrophobia, then refused to allow him to move the furniture. He alleged that Ms. Jackson would not approve his request to take annual leave over the Christmas holidays. He alleged that Ms. Jackson had wrongly asserted that she possessed the authority to deny Mr. Gonzalez’s Family Medical Leave Act (“FMLA”) leave requests. He alleged that the Division had unfairly cut his pay when he moved from OPS to Career Service. Finally, Mr. Gonzalez alleged that persons unknown were sabotaging his efforts to obtain other jobs within the Department of Health. Specifically, he believed he was being denied a veteran’s preference in his applications for other positions in the agency.2 Mr. Gonzalez’s narrative did not explain how any of the actions of which he complained constituted age, gender, or ethnic discrimination, aside from the fact that Kimberly Jackson is a black female. The only solution requested by Mr. Gonzalez in his grievance was for individuals in the Division to “Quit harassment, stalking, and scrutiny; Treatment like other employees; Get my original starting pay, and 10% for violating veterans preference.” The Department of Health’s grievance policy and section 110.227(4) specifically exclude discrimination claims from the Career Service grievance process. Discrimination claims are routed to the agency’s Equal Opportunity Office. On that jurisdictional basis, Ms. Jackson denied the grievance on November 18, 2019. Brenshinita McGee, Manager of the Department of Health’s Equal Opportunity Office, testified that her office investigated the allegations contained in Mr. Gonzalez’s grievance. However, before an investigative memorandum could be completed, Mr. Gonzalez filed an Employment Complaint of Discrimination with the FCHR. This action changed the Equal 2 Mr. Gonzalez’s narrative also included allegations that a Division employee was stalking him and that he was under intense surveillance by his superiors following the issuance of the supervisor guidance memorandum. Mr. Gonzalez presented no testimony or other evidence regarding these allegations, which are therefore found to have been abandoned. Opportunity Office’s role from investigating an internal complaint to responding on behalf of the Department of Health to an external complaint. On February 21, 2020, Mr. Gonzalez filed his Employment Complaint of Discrimination with the FCHR, attaching a copy of his grievance and all supporting information that had previously been sent to Ms. Jackson. On February 28, 2020, Ms. McGee sent an email to Kendricka Howard, an Investigation Manager with the FCHR, requesting clarification as to the issues associated with Mr. Gonzalez’s case. Ms. Howard responded: “The issues associated with this case are: Discipline, Failure to Accommodate, Failure to Hire, Failure to Promote, Terms/Conditions and Wages.” DISCIPLINE The only record evidence of anything resembling a disciplinary action against Mr. Gonzalez was the supervisor counseling memorandum. As found above, a supervisor counseling memorandum is not disciplinary action. There is no evidence that Mr. Gonzalez has ever been disciplined by the Division. Mr. Gonzalez suffered no adverse employment action as a result of the supervisor counseling memorandum or the meeting with his supervisors on October 31, 2019. FAILURE TO ACCOMMODATE The Division stipulated that Mr. Gonzalez suffers from a disability or handicap. However, no evidence was presented to show that Mr. Gonzalez ever requested an accommodation from the Department of Health’s Equal Opportunity Office or that the Department of Health failed to accommodate him. The closest thing to an accommodation claim was Mr. Gonzalez’s allegation that Ms. Jackson would not allow him to move the furniture in his office to alleviate his claustrophobia. At the hearing, Ms. Jackson reasonably explained that all Division office employees are prohibited from moving their own furniture for reasons of personal safety. If employees wish to move their furniture, they must submit a request to the maintenance department. Ms. Jackson had no objection to Mr. Gonzalez reordering the furniture in his office. FAILURE TO HIRE OR PROMOTE Mr. Gonzalez alleges that he was denied the veteran’s preference mandated by section 295.07, Florida Statutes, and Florida Administrative Code Chapter 55A-7, when applying for other positions within the Department of Health. In support of this claim, Mr. Gonzalez referenced applying for three positions between February and March 2018.3 In February 2018, Mr. Gonzalez applied for a Regulatory Specialist II position in the Department of Health’s Office of Medical Marijuana Use. At the hearing, it was established that the Office of Medical Marijuana Use is separate and distinct from the Division. No one in the Division had any decision making authority or advisory role as to who was chosen for the Office of Medical Marijuana Use position. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his application for the Office of Medical Marijuana Use position. In March 2018, Mr. Gonzalez applied for a Medical Disability Examiner position with the Division. In accordance with statutory and rule requirements, Mr. Gonzalez received an additional five points as a veteran’s preference, but failed to score well enough on the work sample portion of the interview to warrant an in-person interview. There was no evidence that the Division committed any adverse employment action or discriminated against 3 In all of these applications, Mr. Gonzalez declined to provide information as to his gender, race, ethnicity, or age. As to these job applications, Mr. Gonzalez did not claim unfair treatment on any basis other than the veteran’s preference. Mr. Gonzalez with respect to his application for the Medical Disability Examiner position. In March 2018, Mr. Gonzalez applied for a Management Review Specialist position with the Division. The notice for the position specifically stated: “Current employment with the Division of Disability Determinations processing federal Social Security claims is required.” At all times during his employment with the Department of Health, Mr. Gonzalez has been a switchboard operator for the Division. He did not meet the minimum qualifications for the Management Review Specialist position. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his application for the Management Review Specialist Position. TERMS, CONDITIONS, AND WAGES Mr. Gonzalez’s reduction in salary after his voluntary transition from OPS to Career Service was neither adverse employment action nor discriminatory. This reduction in salary was consistent with the Division’s practice for all employees. The Director of the Division, Brian Garber, testified that OPS switchboard operators are paid slightly more than Career Service operators to compensate for the facts that OPS employees do not get paid time off for holidays, do not accrue sick leave or annual leave, and do not participate in the State of Florida’s retirement system. When an OPS operator transitions into Career Service, his or her salary is reduced, but other benefits are obtained that offset the salary reduction. Mr. Gonzalez did not dispute that he received benefits when he transferred from OPS to Career Service, including paid leave, paid holidays, discounted insurance options, and retirement benefits. Mr. Garber testified that he specifically requested that Mr. Gonzalez be paid more than other starting switchboard operators because he speaks Spanish. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his wages as a Career Service employee. Mr. Gonzalez claimed that a vacation request was not approved “until [he] had to take measures to HR.” On October 16, 2019, Mr. Gonzalez submitted a request for annual leave the week of Christmas 2019. Ms. Jackson approved his request on November 18, 2019, six days after Mr. Gonzalez filed his complaint with the FCHR. At the hearing, Ms. Jackson explained the delay in approving Mr. Gonzalez’s leave. As the Christmas and New Year’s holidays approach, Ms. Jackson asks all of her subordinates to submit their leave requests by a date certain so that she can arrange for all positions to be covered during that period. She did not approve Mr. Gonzalez’s request until all of her other subordinates had submitted their requests. Ms. Jackson also noted that approval of Mr. Gonzalez’s particular request was contingent upon his accumulating sufficient leave hours before the requested vacation time arrived. In any event, there was no evidence that Mr. Gonzalez was treated disparately or discriminatorily as to his leave requests. The record established that Ms. Jackson has approved every request Mr. Gonzalez has made to use annual leave. Mr. Gonzalez claimed disparate and discriminatory treatment in how his workload is determined, alleging that he was given much more work than the other switchboard operators. The credible evidence reflected that Mr. Gonzalez’s workload is distributed evenly with other switchboard operators. Mr. Gonzalez’s claim about Ms. Jackson’s interfering with his right to take FMLA leave was premised on nothing more than a misunderstanding. On August 21, 2019, at 2:53 p.m., Mr. Gonzalez sent an email to Ms. Jackson stating that he would be absent from work on September 6, 2019, due to a medical procedure. The text of the email did not mention FMLA, though the subject line did read, “Medical Procedure/FMLA.” Ms. Jackson overlooked the subject line and responded to the text, inquiring whether Mr. Gonzalez had submitted a leave request for the date in question. When Mr. Gonzalez responded in the negative, Ms. Jackson nonetheless approved the leave, still not realizing it was FMLA leave and her approval was not required. The approval was given at 3:08 p.m., on August 21, 2019, 15 minutes after Mr. Gonzalez sent his initial email. At the hearing, Ms. Jackson acknowledged her error. Mr. Gonzalez made no showing that he suffered any actual harm from Ms. Jackson’s mistake. Mr. Gonzalez alleged that he has been “given a difficult time when [he tries] to make up [his] time from doctor’s appointments.” This allegation was not supported by record evidence. Ms. Jackson employs a request and approval process for all employees who wish to “adjust their time,” i.e., make modifications from the normal 8:00 a.m. to 5:00 p.m. schedule. The record evidence shows instances in which Mr. Gonzalez properly requested to adjust his time and other instances in which he made time adjustments without prior approval from Ms. Jackson. In neither situation was Mr. Gonzalez “given a difficult time” by Ms. Jackson. To the contrary, the evidence indicates great forbearance by Ms. Jackson in allowing Mr. Gonzalez to adjust his time for doctor’s appointments. Ms. Jackson has no control over the availability of overtime hours. When she is notified by her superiors that overtime is available in her section, Ms. Jackson makes it available equally to all of her subordinate employees. The record indicates that Mr. Gonzalez has both accepted and declined the offers of overtime. There was no evidence that Mr. Gonzalez has ever been denied an opportunity to utilize overtime when it was available. COMPARATOR EMPLOYEES Mr. Gonzalez has not shown that any other employee outside of the protected classes claimed in his FCHR complaint have been treated differently than he has. Mr. Gonzalez actually highlighted the fact that he and several of his OPS counterparts were treated equally when they moved over to Career Service as a group in 2016. The evidence supports a finding that the policies and procedures implemented and reinforced by Ms. Jackson and her supervisors in the Division apply equally to all employees. SUMMARY OF FINDINGS In sum, Mr. Gonzalez’s complaints bespeak a general dissatisfaction with the decisions of his supervisors, in particular his immediate superior, Ms. Jackson. However, disagreements with those in authority do not support claims of discrimination, particularly where the employee cannot establish that he or she has suffered any adverse effects from the disputed decisions. Mr. Gonzalez failed to establish that he was subjected to any adverse employment action by the Division. Mr. Gonzalez offered no evidence that he was treated differently than any other similarly situated employee.
Recommendation Based upon 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 the Department of Health, Division of Disability Determinations did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 4th day of February, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 4th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Dee Dee McGee, EO Manager Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 Rodolfo Gonzalez 2000 Lohman Court Tallahassee, Florida 32311 Louise Wilhite-St Laurent, General Counsel Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399 Virginia Edwards, Esquire Department of Health Prosecution Services Unit Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue Whether the Petitioner, Linda Cattanach, was subject to an unlawful employment practice by Respondent, Florida Department of Elder Affairs, based on her sex or in retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes (2013).2/
Findings Of Fact Petitioner, Linda Cattanach, was at all times relevant hereto an employee of the Florida Department of Elder Affairs. Respondent, Florida Department of Elder Affairs (Respondent or Department), is the state agency responsible for administering human services programs for the elderly and for developing policy recommendations for long-term care. See § 430.03, Fla. Stat. (2015). Respondent operates a Comprehensive Assessment and Review for Long-Term Care (CARES) program to assess individuals for Medicaid long-term care services, whether in a nursing facility, in a private home, or in another community setting. The CARES program operates 19 offices statewide and one central office in Tallahassee. Medical assessments are conducted by CARES Assessors (CAs), and Senior CAs. CAs and Senior CAs are supervised by a Program Operations Administrator (POA) in each office, who reports to a Regional Program Supervisor (RPS). The RPS reports to the Deputy Bureau Chief in Tallahassee, who reports to the Bureau Chief; who, in turn, reports to the Division Director for Statewide and Community- Based Services. In January 2013, Petitioner began employment as a CA in Respondent’s Gainesville office. Petitioner began in a one-year probationary employment status. The record did not clearly establish how many individuals were employed in the Gainesville office with Petitioner. There was an office assistant, Rose Gonzalez; at least four other CAs, including Justin Keels; a registered nurse; and their supervisor, POA Sam Rutledge. Freadda Zeigler was the RPS for the region, which included the Gainesville, Tallahassee, Pensacola, Jacksonville, and Daytona Beach offices. Ms. Zeigler commuted from her home in Broward County. In Tallahassee, Jay Hudson was the Deputy Bureau Chief, Paula James was the Bureau Chief, Carol Carr was the Deputy Division Director, and Marcy Hajdukiewicz was the Division Director. The Gainesville territory covered from Marion County north to the Florida/Georgia line, west to the Leon County line, and east to the Duval County line. CAs were assigned to particular locations within the office’s jurisdiction. CAs traveled to both health care facilities (e.g., nursing homes, assisted living facilities) and private homes to meet with and personally evaluate the needs of the client. Petitioner was primarily assigned to cover facilities in Jasper, Live Oak, Dowling Park, Mayo, and Lake City. Petitioner was in the field conducting evaluations two to three times per week. Her assignments required some long commutes, up to one and one-half hours to Jasper (just south of the Georgia line) and over an hour to Dowling Park and Live Oak. In February 2013, a senior CA position became open in Gainesville. Both Petitioner and Mr. Keels applied and were interviewed for the position. Mr. Keels was selected for the position in March. As senior CA, Mr. Keels did not supervise other CAs in the Gainesville office, but was “put in charge” when Mr. Rutledge was out of the office. When Petitioner began her employment in Gainesville, she was told that a desk was being ordered for her. She was given a folding table to use in her workspace. Petitioner’s workspace was in an open area of the office. Other employees would pass through and occasionally gather in her workspace on breaks or on their way to lunch. Petitioner testified that Mr. Rutledge often came into the open area to interact with other employees around lunchtime to see if anyone wanted to “get food.” Sexual Harassment Claim4/ One day in late March 2013, Mr. Rutledge and Mr. Keels were in Petitioner’s workspace and began discussing a restaurant with the word “cooter” in its name. During this conversation, the two men stood on opposite sides of Petitioner’s worktable, where Petitioner was seated. One of the men asked Petitioner if she knew what the word “cooter” meant, and she responded that she did not. One of the men stated that it meant “vagina.” Petitioner testified that she was embarrassed, uncomfortable, and felt trapped at her worktable where the men stood on either side of her. Petitioner did not report this incident to anyone at first. Petitioner testified that she was afraid that if she said anything, she would be fired. Petitioner’s ambivalence was due in no small part to the fact that Mr. Rutledge was her supervisor. Petitioner described another incident that occurred shortly before the “cooter” incident. Mr. Rutledge called Petitioner into his office and asked her to look at a picture on his computer screen. The picture was of a woman in a bikini. Mr. Rutledge said something to the effect of “that is what my ex-wife used to look like.” Petitioner was embarrassed and left Mr. Rutledge’s office. Respondent maintains a sexual harassment policy of which Petitioner was aware. The policy provides, in part, that “[a]ny employee who believes that he or she is the victim of sexual harassment . . . may make an oral or written complaint to the General Counsel or Director of Internal & External Affairs within 365 days of the alleged discriminatory action.” In April 2013, approximately a week after the “cooter” incident, Respondent’s Inspector General Taroub King began an investigation of Mr. Rutledge, prompted by an anonymous complaint. Among the allegations investigated were that Mr. Rutledge borrowed money from employees, encouraged employees to participate in an investment scheme (or schemes), and utilized employees to witness signatures and notarize documents of a personal nature. The complaint described Mr. Rutledge as maintaining no management structure, lacking basic documentation, and essentially performing no work of any kind. Petitioner was interviewed in connection with the investigation by Ms. King and another investigator from the Inspector General’s office on April 4, 2013. Petitioner was placed under oath and her interview was audio-recorded. Petitioner was questioned about the allegations in the complaint against Mr. Rutledge, and she fully cooperated with the investigators. At the end of the interview, Ms. King asked Petitioner if she had any other information to relay. At that point, Petitioner reported that inappropriate comments and banter of a sexual nature occurred in the office. Petitioner did not report any other details. Ms. King asked Petitioner for particular examples. In response, Petitioner shared the “cooter” incident and the “bikini” incident. All of the employees in the Gainesville office were interviewed by Ms. King. Mr. Keels was interviewed after Petitioner and was questioned about the “cooter” incident and office banter of a sexual nature. At the final hearing, Petitioner maintained that there was both frequent sexual banter and inappropriate conversations in the Gainesville office. She testified that the staff nurse once referred to a patient as having “balls the size of a bull.” She also reported that Mr. Rutledge made hand gestures indicating that Ms. Gonzalez was large-breasted. Petitioner did not share these details with Ms. King during her interview. As with the “bikini” incident, Petitioner was able to walk away from, or otherwise ignore, the comments and gestures of a sexual nature in the workplace. Upon her return to Tallahassee, Ms. King reported her investigative findings to members of Respondent’s Human Resources Department, the Deputy Secretary, and the Director of Internal and External Affairs. Petitioner testified that she sent Ms. King an email sometime after her interview asking whether more information was needed from Petitioner regarding her complaints of inappropriate sexual comments in the workplace. Ms. King denied that Petitioner sent any follow-up email of that nature. Ms. King did recall an email from Petitioner requesting public records. Respondent terminated Mr. Rutledge on April 8, 2013, four days after Petitioner was interviewed by Ms. King. The decision to terminate Mr. Rutledge was made by management in the Tallahassee office. Both Mr. Hudson, the Deputy Bureau Chief, and Ms. James, the Bureau Chief, traveled from Tallahassee to Gainesville to terminate Mr. Rutledge. Ms. Zeigler was likewise present at the Gainesville office for the termination of Mr. Rutledge. However, Ms. Zeigler claimed not to have been informed ahead of time about the termination. She said the appearance of Mr. Hudson and Ms. James at the Gainesville office on April 8, 2013, was a surprise to her. In early May 2013, a significant remodel of the Gainesville office was initiated. The remodel created confusion in the Gainesville office, with furniture being moved around, office files and equipment being boxed up, and the general mess associated with construction in the workplace. At some point, Petitioner lost track of an entire box of her files and later found them on the floor under a pile of chairs she assumed the painters had moved.5/ Alleged Acts of Retaliation Respondent named Mr. Keels as Acting POA, effective April 8, 2013. Ms. James testified, credibly, that Mr. Keels was named Acting POA because he was the senior CA in the office. Mr. Keels was questioned about the “cooter” incident during his interview by the Inspector General. Thus, there is sufficient evidence from which the undersigned can infer that Mr. Keels was aware Petitioner had reported the “cooter” incident to the Inspector General during the investigation of Mr. Rutledge. Petitioner complained that she was ostracized by other employees in Gainesville after Mr. Rutledge was terminated. Petitioner also complained that Mr. Keels treated her unfairly in his capacity as acting POA. First, Petitioner maintained that Mr. Keels increased her caseload, from about 27 to about 44 cases, which made her job very difficult given the lengthy commutes to her assigned facilities. Petitioner introduced no evidence, other than her testimony, that her caseload substantially increased after Mr. Keels became acting POA. Petitioner complained to the Inspector General on April 4, 2013, that her caseload under Mr. Rutledge’s supervision was inordinately heavy. Petitioner also shared with the Inspector General that Mr. Keels, in his capacity as senior CA, was unfair in case distribution. Further, Petitioner testified that although her caseload was heavy in early May, it later declined. The evidence does not support a finding that Mr. Keels assigned Petitioner an inordinately heavy caseload following her complaints to the Inspector General and Mr. Keels’ temporary promotion to acting POA. Sometime after Mr. Keels became acting POA, he took away Petitioner’s worktable. According to Petitioner, Mr. Keels said he took the table for use in the conference room for “staffings,” a term that was not explained by any witness. Petitioner testified there were other tables available in the meeting room which could have been used for that purpose. For the next two months, Petitioner completed her in- office work at a window ledge. She placed her laptop and files on the ledge and utilized extra chairs for additional workspace. In June 2013, Petitioner was presented with a new desk. Petitioner’s Termination During Mr. Rutledge’s tenure as POA, the Bureau had rolled out significant changes to the CARES program. Those changes had not been implemented by Mr. Rutledge, much less communicated to the Gainesville staff. After Mr. Rutledge’s termination, CARES management began monitoring the Gainesville office very closely. During the next few months, Ms. Zeigler was more frequently present in the Gainesville office and was in almost constant contact with Mr. Hudson regarding the activities of the Gainesville office. However, Ms. Zeigler was unaware of any discussions Mr. Hudson may have had with the Bureau Chief or the Division Director. Shortly after Mr. Rutledge’s departure, Ms. Zeigler met with the Gainesville staff to explain new procedures. Among the procedures was a requirement to include on employees’ GroupWise calendars, an entry of every planned field visit. The CAs’ GroupWise calendars were accessible not only to their immediate supervising POA, but also to the RPS and higher-level managers. The calendar was an important management tool used by Respondent both to perform quality assurance checks and to monitor employee performance. On May 9, 2013, Ms. Zeigler sent the following email to the CAs in Gainesville: Good afternoon all, As mentioned in the past meeting in your office, it was requested that I be given access to your GroupWise calendars to help monitor accountability for field visits with Specialization. I would like to thank each of you for adhering to the request, and would like to ask each of you to add the following information to your calendars: First and Last name of client visiting Facility name where client will be visited Home address if visiting client in the home Purpose of visit Time of visit (include estimated travel time) * * * This information is needed for accountability purposes, and also used to check that assessments are being entered in CIRTS, per the attached CARES policy #PPH Update No2011_2, that is still currently in place. Effective immediately, I would like for each worker to add this information to their calendars prior to making a visit. You should also add any approved leave time that you will be taking as well. If your visit schedule changes, it needs to be noted on the calendar with the appropriate change. Please revisit this memo for a thorough understanding. On May 14, 2013, Ms. Zeigler sent an email to Petitioner informing Petitioner that information on her calendar was incorrect. On May 31, 2013, Ms. Zeigler issued a formal counseling memorandum to Petitioner for failure to list her client visits on her GroupWise calendar as directed. The following excerpt is especially relevant: You were instructed to submit your plans for field visits [sic] travel at least one day in advance of the actual travel. A review of your calendar clearly showed that you either did not put any information on your calendar as required and/or you entered incorrect data, for the following dates: April 16, 2013, May 6, 2013, May 7, 2013, May 9, 2013, May 10, 2013, and again on May 14, 2013. At the final hearing, Petitioner did not deny that she failed to enter required information on her calendar. Instead, Petitioner offered a series of excuses, including system connectivity issues, her travel schedule, and confusion regarding a transition from GroupWise to the Outlook calendar system. With regard to connectivity, Petitioner explained that there were problems connecting to the Department’s computer system from remote locations and, occasionally, in the Gainesville office. Petitioner likewise testified that she would not return home until 6:00 p.m. or later on days she traveled to Jasper and other remote field locations. Petitioner complained that connectivity issues prevented her access to GroupWise from home, and thus, was unable to enter the visits scheduled for the following day. Petitioner testified that she complained to the information technology department in Tallahassee about connectivity issues and diligently tried to address these concerns. Petitioner introduced in evidence an email exchange between herself and Ms. Zeigler in which she complained about, and Ms. Zeigler resolved, an issue with Petitioner’s access to CIRTS – the Department’s online case input system. The email string is dated July 17, 2013, well after the date of Petitioner’s documented missing calendar entries. Further, the email relates to access to the case input system and is irrelevant to Petitioner’s claim of issues with connectivity to the computer system in general. Finally, Petitioner explained that the Department changed from GroupWise to the Outlook system, and she was confused about whether to continue adding entries on her GroupWise calendar during that transition. In the May 31, 2013, counseling memorandum, Ms. Zeigler referred to the program’s transition from the GroupWise to the Outlook calendaring system, as follows: The Microsoft Outlook Email and Calendar program was installed on all computers in DOEA, migrating existing GroupWise information to the new Outlook program on May 28, 2013. Instruction videos and online documentation were made available to all DOEA employees to learn how to utilize the new program. You were instructed to give proxy access to the RPS via email from the acting Supervisor. It is evident that you were successful in accessing the Outlook Calendar, as you sent the RPS a request to share your calendar on May 30, 2013. On the same date, you left the office to go to the field at 12:55 p.m., and failed to update/place any information on your calendar before departing. The sign in sheet indicated that you were going to a nursing facility. This repeated failure to comply with procedures is unacceptable. As a result of this failure, your supervisor was unaware of what facility and/or client you were seeing and how long it would take time wise for the field visit. You effectively prohibited your supervisor from knowing your whereabouts and/or the client(s) to be seen. In light of the facts, Petitioner’s alleged confusion about whether to continue adding information to her GroupWise calendar is not credible. Petitioner did not send an Outlook calendar-sharing invite to Ms. Zeigler until May 30, 2013, well after her missing GroupWise calendar entries of April 16 and May 6, 7, 9, 10, and 14, 2013. Further, Petitioner failed to calendar her appointments the same day she sent Ms. Zeigler the calendar- sharing invitation, thus belying any excuse that she had connectivity issues, at least on that particular date. In an effort to minimize the significance of her failure to document her field visits on her calendar, Petitioner testified that she noted her field visits on a daily sign-in log physically maintained in the Gainesville office. Petitioner introduced a composite exhibit purporting to be copies of the daily sign-in logs from April, May, June, and July 2013. Even if the exhibit was reliable evidence of Petitioner’s whereabouts, the logs are irrelevant to the issue of whether Petitioner complied with the electronic calendaring requirement. No evidence was introduced to support a finding that the daily sign-in log was an acceptable alternative to Ms. Zeigler’s specific, clear, and repeated direction to all Gainesville employees to use their GroupWise, and later Outlook, calendars to note their planned field visits with required details. The evidence conflicted as to whether Ms. Zeigler’s May 31, 2013, counseling memorandum constituted discipline. Petitioner testified that the memorandum was a training tool. Ms. Zeigler testified alternately, and with hesitancy, that the memorandum was “almost like a verbal warning type of thing,” and “unofficially formal.” On cross-examination, Ms. Zeigler testified, “I don’t think that that would be a reason to fire somebody after one counseling memo. I mean that would be absurd.” Ms. James testified that the memorandum constituted a first-step disciplinary action. Ms. James explained that a counseling memorandum is preceded by a verbal warning from the supervisor. The Department’s disciplinary policy was not introduced in evidence. In light of Petitioner’s probationary employment status, the issue of whether the counseling memorandum constituted discipline is largely irrelevant. The counseling memorandum is evidence of poor job performance during Petitioner’s probationary employment period. At some point after Mr. Rutledge’s termination, the Department advertised for the open POA position. Both Petitioner and Mr. Keels applied for the position. Mr. Hudson and Ms. Zeigler conducted interviews for the position. Petitioner was not responsive to Ms. Zeigler’s efforts to schedule Petitioner’s interview for the position. Eventually, Ms. Zeigler did interview Petitioner for the position. Ms. Zeigler also interviewed Mr. Keels. In June 2013, Ms. Zeigler prepared performance evaluations of the Gainesville staff. Ms. Zeigler had little knowledge of staff performance prior to Mr. Rutledge’s termination, as Ms. Zeigler was new to the region. Ms. Zeigler gave all the Gainesville employees ratings of “3,” satisfactory performance, across the board. In late July 2013, Ms. Carr and Ms. Hajdukiewicz from the Tallahassee office came to the Gainesville office and personally terminated Mr. Keels. Ms. James did not directly make the decision to terminate Mr. Keels, but she agreed with the decision. Ms. James stated that Mr. Keels was terminated based on his actions after he became acting POA in Gainesville. Ms. James did not elaborate and neither counsel asked any follow-up question. On July 31, 2013, Ms. Carr and Ms. James came to the Gainesville office from Tallahassee, met with Petitioner, and offered her a choice of resignation or termination. Petitioner chose termination. That same day, after leaving the office, Petitioner called the Department of Human Resources and requested to change her termination to resignation. The request was granted. Petitioner did not ask why she was being terminated or asked to resign. Petitioner testified that neither Ms. Carr nor Ms. James gave her a reason. Ms. Zeigler resigned from the Department in October 2013. The circumstances of Ms. Zeigler’s resignation were not introduced in evidence. In that regard, Ms. Zeigler testified as follows: I had a lot of questions with the State that probably should not come up here, but there are a lot of questionable things that were going on with the State at the time which led to my resignation. So I did not question it. I did not question [Petitioner’s] termination based off of my ability to run the office, because I almost felt like it was being run above me.[6/] Ms. Zeigler’s testimony was introduced in support of Petitioner’s claims. However, Ms. Zeigler had difficulty recalling events, including the timing of relevant events. Of note, Ms. Zeigler testified that she was the RPS for Gainesville about a year, meaning she would have begun in the position in October 2012. Later, she testified that Mr. Rutledge was terminated “not long after I was there [as RPS].” Her testimony was hesitant, hedging, and sometimes conflicting. Ms. Zeigler testified that she was in daily contact with Mr. Hudson about issues in the Gainesville office after Mr. Rutledge was terminated, but claimed to have had no advance notice of either Mr. Keels’ or Petitioner’s termination. As such, the undersigned finds Ms. Zeigler’s testimony to be both unreliable and unpersuasive. Ms. Zeigler’s counseling memorandum to Petitioner regarding calendaring is credible evidence of Petitioner’s job performance which cannot be discounted by Ms. Zeigler’s after-the-fact, and apparently biased, testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Florida Department of Elder Affairs, did commit an unlawful employment practice as to Petitioner, Linda Cattanach, and prohibiting the practice. However, under the specific facts of the case, the undersigned recommends no affirmative relief from the effects of the practice. DONE AND ENTERED this 5th day of October 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2015.
The Issue Whether Respondent terminated Petitioner’s employment in violation of Chapter 760, Florida Statutes (2004), popularly known as the Florida Civil Rights Act of 1992 (Florida Civil Rights Act).
Findings Of Fact Petitioner is an Hispanic female. Petitioner was employed by Respondent in records for almost 15 years prior to July 16, 2004, when she was terminated. Respondent is a municipal corporation located in Miami- Dade County, Florida, and an employer within the meaning of the Florida Civil Rights Act. Respondent provides a variety of public services generally associated with cities of comparable size, including a full service police department. At all relevant times, Hispanics comprised approximately half of the police department's workforce. Many of these individuals were employed in supervisory capacities. Four Hispanics were supervisors in Petitioner's chain of command. In her position in records, Petitioner was responsible to timely and accurately process official police documents. Such processing included the completion of forms and transmittal documents and timely copying, filing and production of such documents to appropriate individuals and authorities (document processing). Failure to discharge any of the foregoing responsibilities is reasonably deemed by Respondent to be incompetence, and a firing offense(s). In her position in records, Petitioner was also responsible to comply with all directives of supervisors and to cooperate in internal affairs investigations. Cooperation in this context includes providing sworn statements and/or answering questions under oath as may be required by Respondent. Failure to comply with directives and to cooperate in internal affairs investigations are reasonably deemed by Respondent to be insubordination, and firing offenses. On April 29, 2004, a member of the public presented himself to records and requested a copy of an official police record to which he was entitled to access, specifically a traffic ticket. Records could not locate the document because it had not been properly processed by Petitioner, who was responsible for doing so. Having become aware of a problem with this particular document processing, Respondent thereupon took reasonable steps to determine whether this was an isolated error by Petitioner. In so doing, Respondent discovered and documented a high volume of document processing errors with respect to official police records for which Petitioner was responsible. In February 2004, one of Petitioner's supervisors – one who happened to be Hispanic -- issued a written directive (the February directive) to all records employees which required that they disclose, on a weekly basis, any "backlogs" of document processing work. In direct violation of the directive, Petitioner never disclosed existence of her backlog, which was, by April 29, 2004, extremely large. Now on notice of the backlog and deeply concerned about its potential effects on the police department and the public it serves, and pursuant to police department policy, an internal affairs investigation was initiated under the leadership of the same Hispanic supervisor. Over the course of the investigation, Respondent learned that the problem(s) revealed on April 29, 2004, were only the "tip of the iceberg." The internal affairs investigation uncovered “hundreds and hundreds” of additional document processing errors. Virtually all of the errors discovered involved official police records for which Petitioner was responsible. In the course of the internal affairs investigation, Petitioner was directed to give a sworn statement, and refused to do so, which refusal was deemed to constitute insubordination. Petitioner’s errors as documented in the internal investigation demonstrated incompetence. Her failure to comply with the February directive and to provide a sworn statement to internal affairs investigators constituted insubordination. At the conclusion of the internal affairs investigation, Petitioner was terminated for incompetence in the performance of her document processing responsibilities and for insubordination. Petitioner failed to discredit the factual underpinnings of Respondent’s decision to terminate her employment; neither did she establish any discriminatory basis upon which Respondent terminated her employment. Respondent replaced Petitioner with an Hispanic, who remained employed by Respondent through and including the time of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the FCHR enter its final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 14th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Christina Quintero 4780 Northwest 2nd Street Miami, Florida 33126 David C. Miller, Esquire Akerman Senterfitt Sun Trust International Center, 28th Floor One Southeast Third Avenue Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether, on the basis of Petitioner's age, Respondent (a staffing agency) unlawfully discriminated against Petitioner by having him terminated from his position with Respondent's client, in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent inSync Staffing, Inc. ("inSync"), is a company that recruits for, and supplies employees to, its clients, including, as relevant here, NBTY, Inc. ("NBTY"). inSync is an "employment agency" as that term is used in the Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13, infra. inSync does not meet face-to-face with most of the candidates it places with clients. On or around August 19, 2015, a recruiter at inSync forwarded the résumé of Petitioner Adalberto Lopez ("Lopez"), then 75 years old, to NBTY in hopes that NBTY might hire Lopez to fill the position of "QA Floor Inspector – Shift 1," a job that paid $13.50 per hour. About a week later, NBTY interviewed Lopez, and, on September 2, 2015, inSync informed Lopez that NBTY was offering him the job. Lopez accepted the offer. NBTY, not inSync, made the decision to hire Lopez. At all times, inSync acted essentially as a go-between, introducing Lopez to NBTY and helping him apply for the job, informing Lopez of NBTY's training and drug test requirements for new employees, and providing him with documents that NBTY wanted completed and returned in the ordinary course of new-hire onboarding. One of the documents that Lopez was required to sign and submit was the Employment Eligibility Verification (Form I-9), which is used by the U.S. Department of Homeland Security, administrator of the federal E-Verify program, to determine whether an employee is authorized to work in the United States. The E-Verify program provided NBTY with a result of Tentative Nonconfirmation ("TNC"), meaning that there was, at a minimum, some discrepancy between the information provided in Lopez's Form I-9 and that available in other public records. A TNC does not necessarily disqualify an employee from continuing to work, but it does need to be resolved to avoid the possibility of termination. In this instance, there is no persuasive evidence that the TNC led NBTY to take any adverse action against Lopez. There is, moreover, no evidence that inSync took any adverse action against Lopez as a result of the TNC. Lopez's first day of work at NBTY was September 14, 2015. The next day, NBTY terminated Lopez's employment. Nevertheless, Lopez showed up for work on September 16 and was told, again, that he no longer had a job. There is no persuasive evidence that inSync played any role in NBTY's decision to fire Lopez. inSync did, however, communicate this decision to Lopez, telling him that he had "been terminated due to not catching on fast enough." This was the reason for the termination given to inSync by NBTY. There is no persuasive evidence that this was not, in fact, NBTY's reason for firing Lopez. There is no persuasive evidence that NBTY eliminated Lopez's job, but there is, likewise, no evidence that NBTY filled the vacant position after Lopez's termination, nor (it obviously follows) any proof regarding the age of Lopez's successor (assuming NBTY hired someone to replace Lopez). There is no evidence concerning the candidates, if any, that inSync referred to NBTY after Lopez had been fired. Ultimate Factual Determinations There is no persuasive evidence that any of inSync's decisions concerning, or actions affecting, Lopez, directly or indirectly, were motivated in any way by age-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age discrimination could be made. Ultimately, therefore, it is determined that inSync did not discriminate unlawfully against Lopez on the basis of his age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding inSync not liable for age discrimination. DONE AND ENTERED this 26th day of October, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of October, 2017.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
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 the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 17th day of February, 2009.
The Issue The issue is whether Petitioner was terminated from her employment with Respondent for a discriminatory reason.
Findings Of Fact Petitioner, Sharon Singleton, was employed by Respondent in the Information Technology (IT) Department. Petitioner served, as did other IT employees, under an annual contract. Respondent is the administrative government entity for the public schools of Escambia County, Florida. Contracts of employment are with the Escambia County School Board. Mr. Johnnie Odom supervised Petitioner until the last eight months of her employment. Her supervisor was Kathy Cooper during the last eight months of her employment. For many years, Petitioner and the other technicians used a software program that supported the management of school records that was known as “TERMS.” During the last few years of Petitioner’s employment, the District changed the supporting software program from TERMS to a program known as “FOCUS.” This was a major conversion of software programs that took place over an extended period of time. When the FOCUS program was initiated, Respondent hired three additional technicians to support FOCUS. Petitioner disagreed with the hiring of new technicians to support FOCUS, but acknowledges she was not treated any differently from the other Tech III support staff. Her disagreement was over the hiring of the new technicians, rather than allowing the existing ones to serve as primary support for FOCUS. Petitioner sought a promotion to a higher level position in 2011. The promotion process was administered by a selection committee that interviewed and evaluated candidates. As a result of the competitive selection, Petitioner was not recommended or selected for the promotion. On two prior occasions, Petitioner had sought a promotion, and on both occasions a selection committee ranked and evaluated the candidates. Petitioner was not successful in being selected or promoted on those two prior occasions. For the 2011-2012 school year, Petitioner received unsatisfactory ratings for her administrative/professional techniques and skills, as well as for her professional relationships with staff. The evaluation contained a note stating that Petitioner has difficulty in resolving conflicts with her co-workers and that her supervisor would like to see her resolve conflicts with her co-workers in a more diplomatic manner. Petitioner had received some unsatisfactory or needs improvement marks in her previous years’ evaluations, so 2011- 2012 was not the first time she had received less than satisfactory marks. Nevertheless, following the 2011-2012 annual evaluation, Petitioner received an annual employment contract for the next school year. At the end of the next school year, Petitioner again received an unsatisfactory mark for her professional techniques and skills. She also was cited for needing improvement in other areas. The notes to that evaluation stated Petitioner had improved her relationships with co-workers, but was still having problems adjusting to the new programs that required modernizing her skill set. Despite a few negative marks on her evaluation, Petitioner received an annual contract for the 2013-2014 school year. Petitioner did not dispute the fact that her evaluator and supervisor, Mr. Odom, believed her performance was unsatisfactory. She disagreed, however, with his assessment of her performance. Petitioner believed she had been demoted in the 2013-2014 school year and testified she signed a paper acknowledging a demotion in a disciplinary meeting with the IT department director, Tom Ingram. She did not receive a reduction in salary or benefits, however. Mr. Ingram classified the action taken against Petitioner as a restriction of her duties to Level I telephone support, rather than the more challenging Level II telephone support duties that she had performed in the past. He did not consider this a demotion, but more of a recognition of assigning Petitioner to duties that he believed she could better handle with her skill set. Petitioner testified that Ms. Cooper told her on several occasions she should consider retirement. Petitioner took this as evidence of Ms. Cooper’s belief she was too old to perform her job. Ms. Cooper testified she made the suggestion because Petitioner had an elderly mother who lived in a nursing home and needed assistance. Ms. Cooper was responding to Petitioner having told her she was left with little time to care for her mother when she finished with work. Petitioner acknowledged that her mother was elderly and needed help and that she had told this to Ms. Cooper. During Petitioner’s final eight months of employment, she worked mainly telephone support under the direction of Ms. Cooper, the support manager for the District. Ms. Cooper manages the help desk and IT support staff. She manages two levels of support. Level I support involves matters that can be resolved by telephone, while Level II support is for matters that cannot be resolved in five minutes or less and require more expertise to cure. Ms. Cooper developed concerns about Petitioner’s support performance. She took her concerns to the Director of IT, Mr. Ingram. Similar concerns with Petitioner’s performance had been raised by another support technician, as well. That technician reported that one of the schools to which he and Petitioner had both been assigned, asked that Petitioner not be allowed to return there for support in the future. When Ms. Cooper brought her concerns about Petitioner to Mr. Ingram, he asked that she bring him documentation of her concerns evidencing recent issues concerning Petitioner’s performance. Mr. Ingram met with Petitioner on September 3, 2013, to review her performance. Mr. Ingram’s notes from that meeting document his concern with Petitioner’s performance and he restricted her duties at that time to telephone support because he did not believe she could independently provide on-site support to more schools. His notes further indicate that Petitioner was not satisfied with his conclusions regarding her performance. Mr. Ingram conducted a follow-up interview with Petitioner on September 4, 2013, because Petitioner wanted to share with him the evaluation she had received from Mr. Odom for the 2012-2013 school year. Mr. Ingram told Petitioner he agreed with the evaluation conducted and recorded by Mr. Odom. Mr. Ingram had yet another meeting with Petitioner in March 2014 regarding her performance. With Ms. Cooper present, Mr. Ingram reviewed documentation concerning Petitioner’s unsatisfactory performance. The meeting was held pursuant to a Notice of Consideration of Disciplinary Action served on Petitioner. As a result of the meeting, Mr. Ingram was not confident Petitioner could satisfactorily improve her performance. He believed that Petitioner refused to accept the representative examples he gave her of her unsatisfactory performance. After concluding at the March meeting that Petitioner’s performance would not sufficiently improve, Mr. Ingram decided not to renew Petitioner’s annual contract when it expired in June 2014. Petitioner believed she had been marginalized by her perceived demotion to a Level I telephone support technician. She also was removed from ZENworks, a scheduling program she had previously been involved with over the years, becoming the only employee on the support team that was not allowed to participate in that program. Petitioner believed that all the criticisms of her work by management were hyper-technical, and that she received little, if any, feedback or training during the period for which she was evaluated when the unsatisfactory findings were made. She also attempted to show that others who made errors similar to hers were given promotions. The evidence presented on this point was insufficient to support her claim of disparate treatment. Several retired or long-serving District employees testified that their interaction over the years with Petitioner resulted in responsive and high-quality service from Petitioner. None of these witnesses testified about specific support they received from Petitioner during the last three years of her employment, employing the new FOCUS system, which served as the basis for the non-renewal of her contract. Petitioner testified she should receive damages in the amount of $384,000 as the result of her employment being terminated while she was a participant in the midst of D.R.O.P.
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 Respondent did not commit the “unlawful employment practice” alleged by Petitioner and dismissing Petitioner’s employment discrimination charge. DONE AND ENTERED this 11th day of December, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2015. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs and Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32502 (eServed) Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent, St. Andrews Bay, is a licensed nursing home that provides in-patient care to its residents. Its facility is located in Panama City, Florida. In order to provide its service, Respondent employs a variety of racially diverse personnel, consisting of both permanent and contract employees. Towards that end, Respondent maintains a variety of employment discipline and transfer policies that are contained in the Employee Handbook for St. Andrews Bay. The April 2011 Employee Handbook, which was in effect in August 2011, set forth the policy regarding transfers, as follows, in relevant part: Employees who wish to be considered for a transfer or promotion to a vacant position may apply if the employee is of "Good Standing." In addition to being in "Good Standing," the employee must possess the following: The minimum qualifications for the position: Received no progressive disciplinary action within the past six months (emphasis added). * * * The Employees Handbook, also, provided for progressive discipline. Such discipline included, in ascending order, coaching, first/second written warnings, suspensions, and Performance Improvement Plans. Petitioner is a black male. As such, Petitioner is a protected person under chapter 760, Florida Statutes. In January 2006, Petitioner was employed by Respondent as a Dietary Aide. As an employee, Petitioner received a copy of, or had access to, Respondent's discipline and transfer policies. At some point, tardiness for work became a problem for Petitioner. Indeed, his supervisor considered him a competent employee with some tardiness issues and, on April 6, 2011, disciplined Petitioner with a "coaching" for being two hours late for work without notifying anyone that he would be late. Although the dates are unclear, the evidence showed that Mr. Munn, who is a white male, worked as a laborer for ManPower. Through a contract between ManPower and St. Andrews Bay, Mr. Munn was performing painting, maintenance, and any other work the Maintenance Director assigned, for approximately four to five weeks, beginning sometime in July 2011. Around August 3, 2011, a sign-up sheet was posted at St. Andrews Bay for the position of Maintenance Assistant. The sign-up sheet was posted to notify any current employees of the job opening and allow them to apply for the position by signing the posted sheet. Within less than six months of Petitioner being disciplined, Petitioner, along with two other current employees, indicated their interest in the Maintenance Assistant position by signing the sign-up sheet. The other two employees who expressed interest in the maintenance position did not testify at hearing and no findings are made regarding their qualifications or, more importantly, Respondent's knowledge regarding their qualifications. Per Respondent's policy, Petitioner did not have to complete an application for the maintenance position since he had two applications, one dated January 4, 2006, and one dated October 24, 2007, on file with the Respondent. Neither of these applications reflected that Petitioner had prior maintenance experience. One application reflects that Petitioner owned a restaurant known as "Daddy's Place." One application reflects that Petitioner was the cook at Daddy's Place. However, neither ownership nor cooking experience indicates maintenance experience and there was no evidence that Respondent knew that Petitioner worked other than as a cook in his restaurant or had any other maintenance experience from such ownership. Moreover, under Respondent's transfer policy, Petitioner was not qualified to sign up for the maintenance position since he had received disciplinary action within six months of this transfer opportunity. On the other hand, the evidence showed that Mr. Munn applied for the position of floor tech at St. Andrews Bay in December of 2010, but was not hired for that position. Unlike Petitioner, and in addition to Mr. Munn's current maintenance work experience at Respondent's facility, Mr. Munn's application reflected some experience in maintenance, albeit not extensive experience. However, like Petitioner, Mr. Munn's application for employment was already on file. Therefore, it was not necessary for Mr. Munn to fill out a second employment application for the position of Maintenance Assistant. Petitioner's policy regarding on-file applications is reasonable and was applied to both black and white applicants in this case. There was no competent evidence that demonstrated this policy was a pretext for discrimination. Petitioner was not interviewed for the position. However, the evidence did not show that anyone was formally interviewed for the maintenance position. On these facts, lack of formal interviews does not demonstrate discrimination by Respondent against Petitioner since Respondent was already familiar with the two applicants at issue in this case. On August 8, 2011, Wesley Munn was selected for the Maintenance Assistant position by the maintenance supervisor, Mr. Emmanuel. Although somewhat unclear, the evidence demonstrated that Mr. Munn's selection was approved by the then Administrator of St. Andrews Bay, Tunecia Sheffield, who is black. Neither of these two individuals testified at hearing. However, the evidence at the hearing did not demonstrate that Respondent discriminated against Petitioner when it hired Mr. Munn for the maintenance position. Conversely, the evidence at hearing demonstrated that Mr. Munn's hiring had a reasonable basis since Mr. Munn had some maintenance experience and was already performing the duties for which he was hired. There was no competent evidence that demonstrated Respondent's reasons for hiring Mr. Munn to be a pretext for discrimination. Therefore, given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of August, 2012, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2012. COPIES FURNISHED: Tiffany A. Minton, Esquire Preferred Care, Inc. 5500 West Plano Parkway Plano, Texas 75093 Jimmy L. McClain 1527 Grace Avenue, Apartment C Panama City, Florida 32405 Lacey Corona, Esquire Broad and Cassel Suite 205A 200 Grand Boulevard Destin, Florida 32550 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 mdaughton@broadandcassel.com Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue Whether Respondent was Petitioner’s employer at the time of Petitioner’s alleged unlawful termination, or is otherwise liable to Petitioner for alleged unlawful termination under any theory of successor liability.
Findings Of Fact Petitioner was employed as a Legal Assistant by Igler & Dougherty Law Offices, P.A. (Igler & Dougherty), in Tallahassee, Florida, for approximately three-and-a-half years. Petitioner was terminated by Igler & Dougherty by letter dated February 6, 2012, allegedly for failure to make “adequate progression to date.” Petitioner alleges that she was unlawfully terminated after treatment for migraine headaches during an extended hospital stay. Respondent, Adams and Reese, LLP, is a limited liability law partnership headquartered in Louisiana, with offices in Louisiana, Mississippi, Tennessee, Texas, Alabama, Florida, and Washington, D.C. Charles P. Adams, Jr., is Respondent’s Managing Partner. In mid-summer 2012, Respondent approached George Igler, Partner in Igler & Dougherty, about the possibility of joining Adams and Reese to establish the firm’s Tallahassee office. Mr. Adams was primarily responsible for all discussions with Mr. Igler and other members of Igler & Dougherty who eventually joined Respondent. On October 1, 2012, Respondent announced the official opening of its Tallahassee office. The new office was located at 2457 Care Drive, the building that formerly housed Igler & Dougherty. At no time before October 1, 2012, did Respondent maintain an office or employ individuals in Tallahassee, Florida. Mr. Igler and Mr. Dougherty joined Respondent as partners. Other former Igler & Dougherty lawyers joined Respondent as partners and associates. Respondent also hired some of the support staff from Igler & Dougherty. Respondent did not hire Petitioner. Respondent did not merge with Igler & Dougherty, did not acquire the assets of Igler & Dougherty, and did not assume the liabilities of Igler & Dougherty. Igler & Dougherty retained its accounts receivable and work in progress, and Mr. Igler and Mr. Dougherty continued to wrap up the business of Igler & Dougherty after joining Adams and Reese. Respondent is managed by its Managing Partner and an Executive Committee comprised of six partners. None of the attorneys or employees of Igler & Dougherty hired by Respondent are Executive Committee members. Respondent has two classes of partners, capital partners and income partners. Only capital partners have an ownership interest in the firm. Only one of the seven attorneys hired by Respondent from Igler & Dougherty, Mr. Igler, is a capital partner. On October 12, 2012, the date Respondent opened its Tallahassee office, Respondent had 114 additional capital partners, none of whom had worked for Igler & Dougherty. At no time did Respondent employ Petitioner. Respondent did not participate in Petitioner’s termination nor did it have any role in the decision to terminate her. At the time Petitioner filed her Charge of Discrimination with the Commission, the Florida Secretary of State website showed that Igler & Dougherty, P.A., was an active Florida registered corporation.
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 dismissing the Petition for Relief filed by Kelli Lawhead in FCHR No. 2013-00581. DONE AND ENTERED this 21st day of July, 2014, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lauren F. Strickland, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Leslie A. Lanusse, Esquire Adams and Reese, LLP 701 Poydras Street, Suite 4500 New Orleans, Louisiana 70139 Lauren L. Tafaro, Esquire Adams and Reese, LLP 701 Poydras Street 4500 One Shell Square New Orleans, Louisiana 70139 Cheyanne Costilla, General Counsel Florida Commission of Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding are whether Respondent was the employer of Petitioner; and, whether Petitioner was terminated from his employment with Respondent because of his race.
Findings Of Fact Petitioner is a white male. At all times relevant to this matter, Petitioner was employed with the City of Tallahassee (City). Petitioner continues to be employed by the City. As part of its municipal function, the City of Tallahassee has the responsibility of maintaining drainage ditches located within the City limits. The Leon County Sheriff’s Office (Sheriff's Office) provides inmate work crews to the City for assistance in carrying out this responsibility. The Sheriff's Office also provides the inmates with any food or other items they require. The inmate work crews are supervised by City employees who have completed the Sheriff’s Office certification program for supervising inmates. The certification program is required because of security concerns involved with utilizing the labor of incarcerated individuals outside of the controlled environment of a jail. Because of security concerns, employees are instructed not to provide contraband to inmates. Contraband is defined as any item given to an inmate which the Sheriff's Office has not authorized to be given to the inmate. If any items are provided to inmates, all inmates must receive the item. Petitioner completed the certification program and was employed by the City to supervise inmate work crews. He was told during the training session that inmate supervisors could not provide contraband to inmates, but if any items were provided to inmates, all inmates must receive the item. On or about August 16, 2000, Petitioner gave a bucket of Popeye's chicken to an inmate under his supervision. The bucket of chicken had been given to Petitioner by a Popeye’s employee to give to the inmates because the Popeye's employee knew one of the inmates. Each inmate received a piece of chicken. However, even though Petitioner checked the bucket for weapons, Petitioner did not obtain or attempt to obtain authorization from the Sheriff's Office to give the chicken to the inmates. When Sergeant Lee, a Sheriff’s Office sergeant, visited the work site and saw the chicken bucket and that chicken had been eaten, he asked Petitioner if he had given the chicken to the inmates. Believing that he had done something wrong, Petitioner lied to Sergeant Lee and said that he had not given chicken to the inmates. Sergeant Lee instructed Petitioner to return the inmates to the Leon County Jail. While at the jail, Petitioner admitted that he had given the chicken to the inmates. Petitioner was advised by the Sheriff’s Office that he could no longer supervise inmates. The Sheriff's Office also advised the City that Petitioner was no longer certified to supervise inmates. The City then transferred Petitioner to another position but did not reduce his pay or benefits. On a date after Petitioner’s removal from supervising inmates, the City held a luncheon and invited inmates. There was no evidence presented that the invitation to lunch was or was not authorized by the Sheriff’s Office. Ted Hubbard, a white City employee, has provided watermelons to inmates and other unnamed black inmate supervisors were present when Leon County employees gave Gatorade and other items to inmates. Neither Hubbard nor any other person has been removed from supervising inmates. However, other than very vague references to these "other" supervisors, Petitioner offered no evidence of any similarities between his employment and these other employees or that the items allegedly given to the inmates were not authorized by the Sheriff's Office or that the Sheriff's Office even knew alleged contraband had been given to any inmates. Certainly, no other person lied about providing items to inmates. At no time did the Sheriff's Office make any employment decisions on behalf of the City. Likewise, at no time did the Sheriff's Office employ Petitioner. In fact, the City made all decisions with regard to Petitioner's employment and was the actual employer of Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of July, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2002. COPIES FURNISHED: Linda G. Bond, Esquire Powers, Quaschnick, Tischler & Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald H. Lairsey 8031 Smith Creek Road Tallahassee, Florida 32310 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
