The Issue Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 7th day of February, 2013.
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent due to his marital status.
Findings Of Fact Respondent is a corporation that sells and services blueprint machines and the supplies needed to operate such machines throughout a multi-regional area in the United States. Pamela Turner was the Director of Operations for Respondent. Her office was in the Pensacola, Florida, branch offices of the Respondent. During 2011, Respondent was looking for a person to fill a field technician position covering parts of Florida and Georgia. At the time, the territory that this position serviced ranged from Tallahassee, Florida, south to Perry, Florida, north to Valdosta and Albany, Georgia, and west to Destin, Florida. Importantly, the technician for the above area did not work out of Respondent's Pensacola office, but was remotely located somewhere within the position's service area. Further, parts and inventory were shipped to the remote location used by the field technician. For that reason, it was required that the field technician for the area possess the utmost honesty and trustworthiness. Additionally, it was very important that Petitioner and, specifically, Ms. Turner have a high degree of confidence in any person selected for the field technician position. In November 2011, Petitioner interviewed for the Field Service Technician position with Respondent. Petitioner interviewed with Pamela Turner and Michael Miller, the head of the company. Pamela Turner advised the Petitioner that due to the remote location of the job, it required the utmost in terms of honesty and trustworthiness of the person hired since the employee would be unsupervised most of the time and would possess valuable tools, parts and inventory at the employee's remote location. On his application, Petitioner disclosed the address where he lived as 1654 Eagles Watch Way, Tallahassee, Florida. The address on Petitioner?s application was his mother?s home and was the place where he lived. Petitioner understood that this address also would be considered the address for his office and the address where parts and inventory would be shipped. During Petitioner?s interview, Petitioner was never asked any questions by the interviewers about the status of his marriage. The fact that Petitioner was married came up during casual conversation in relation to the travel required for the job. Additionally, during the course of the interview with Ms. Turner, Petitioner told Ms. Turner that Petitioner?s wife would like for him to get this job because it meant more time at home with her. However, Petitioner did not inform any interviewer that he was separated from his wife because he did not feel that it had anything to do with his ability to perform the job he was interviewing for. He likewise did not inform any of the interviewers that he was not living with his wife at her home or that he occasionally stayed at his wife's house because they were trying to work things out between them. Petitioner was never asked specifically during the interview who owned the address that was listed on his application. However, Ms. Turner reasonably assumed that it was Petitioner?s and his wife?s home. The Petitioner was hired for the position of field service technician on December 12, 2011. His employment contract ran from December 12, 2011, through December 11, 2012. After Petitioner began his employment, Petitioner shared with a co-employee, Paul Springer, that he was separated from his wife. Paul Springer was a church counselor and suggested that he could help Petitioner and his wife by counseling them. In January 2012, while talking with another employee, Pamela Turner learned that Petitioner was living with his mother and that Petitioner was separated from his wife. This information was of concern to Pamela Turner because she questioned where parts Petitioner utilized in the maintenance and repair of customer photocopying machinery were being shipped. She was concerned because she thought this was Petitioner's and his wife's home only to discover that the home did not belong to Petitioner. Ms. Turner felt that Petitioner should have disclosed the fact that the address on his application was not owned by him and felt that the lack of disclosure was the same as misrepresenting information to her. Further, Ms. Turner, based on her earlier incorrect assumptions about Petitioner's address and living in the marital home, asked Petitioner why he had not told her about the address as it related to the circumstances of Petitioner's marriage. Ms. Turner incorrectly felt that Petitioner had misrepresented the circumstances of his marriage, which called into question the ownership of the address to which parts and inventory were being shipped. As a result, the confidence that Ms. Turner had in Petitioner was undermined. Petitioner explained to Ms. Turner that he and his wife were working on things and he was between his wife?s residence and his mother?s residence, but that he was not telling different stories. Further, the evidence demonstrated that Petitioner did not actively misrepresent anything to Respondent. However, Ms. Turner honestly felt that she could no longer trust Petitioner and honestly believed through her worldview that Petitioner had misrepresented himself to her. On January 30, 2012, she advised Petitioner that he was being terminated for misrepresentation. Given Ms. Turner's honest beliefs, Respondent's rationale for terminating Petitioner was not a pretext for discrimination. More importantly, given these honest beliefs, the evidence did not demonstrate that Petitioner's termination was based on Petitioner's separated marital status, but on the lack of trust that Petitioner's supervisor had in him. After the termination, Petitioner made no report of the alleged discrimination pursuant to the Respondent's written Problem Resolution policy and/or Equal Employment Opportunity policy both of which provided a problem and discrimination complaint process within Respondent's company. Petitioner was aware of these policies. However, Petitioner did not utilize these complaint processes because there was no one to escalate the complaint to since his supervisor, Pamela Turner, and the head of the company, Michael Miller, were both involved in the decision to terminate Petitioner. Therefore, Petitioner's lack of use of Respondent's discrimination and problem complaint processes was reasonable under the circumstances. Further, no adverse action has been taken against any employee of Respondent due to that employees? marital status. Thus, there are no similarly situated employees outside Petitioner's protected class to which Petitioner can be compared. Moreover, Petitioner offered no evidence at the hearing on January 16, 2013, that he lost any wages due to the alleged discrimination. Ultimately, however, the evidence was insufficient to demonstrate that Petitioner was terminated due to his separated marital status. As indicated, Ms. Turner honestly felt she could not trust Petitioner in a position that required her to have the highest confidence in that employee. Therefore, based on these facts, Respondent did not discriminate against Petitioner based on his marital status and 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 17th day of April, 2013, 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 17th day of April, 2013. COPIES FURNISHED: Daniel Phillips, Esquire Phillips Law Firm 1413 North Randolph Circle Tallahassee, Florida 32308 Michael John Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Tiffany Rousseau Cruz, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Handi House of Starke, Inc. ("Handi House") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2008),1/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, and by discharging Petitioner from his employment after a dispute with a similarly situated employee outside of his protected classification.
Findings Of Fact Handi House is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Handi House sells and delivers portable storage buildings. Handi House is a family owned business. It is currently owned by Christina Hewes, who took over the company from her father, John Curles, in 2003. Handi House pays its employees in a variety of ways, including hourly wages, salaries, and commission, depending on the work performed. Ms. Hewes and Mr. Curles are white. Petitioner, a black male, worked off and on at odd jobs and manual labor for Handi House and for Mr. Curles personally for more than 20 years. Ms. Hewes conceded that Petitioner has been affiliated with the family business for as long as she can remember. Petitioner testified that he worked for Handi House for 28 years, but was never formally placed on the company payroll. He stated that he never received a W-2 from the company and that Social Security taxes were never deducted from his pay. Petitioner testified that he was paid roughly $7.00 per hour and received a check every week. He placed into evidence two checks that he had received from Handi House. The first check was dated October 9, 2009, and was for $236.00. The second check was dated November 25, 2009, and was for $198.00. Ms. Hewes could not testify as to the business arrangement that existed between Petitioner and her father, but she knew her father always tried to find something for Petitioner to do when he needed work. Petitioner worked at other jobs as well as at Handi House. Ms. Hewes stated that since she has taken over the company, Petitioner has worked for her intermittently between arrests, time in jail, and probation. Petitioner did not have a driver's license, which limited his value to Handi House, as he could only act as an assistant on deliveries. Petitioner worked as an unskilled laborer whenever Ms. Hewes had work for him to do and he was available to do it. Ms. Hewes testified that when Petitioner was sober and willing, he worked better and harder than 90 percent of the people she had ever hired. However, Petitioner was unreliable. Ms. Hewes testified that there were many occasions when Petitioner came in to bail her out of a tough spot, but just as many occasions when his failure to show up as scheduled or his showing up drunk left the business "high and dry." Docket sheets from the Bradford County Clerk of Court from 2006 through 2009 show that Petitioner was arrested for driving under the influence (guilty plea), aggravated battery (nolle prosequi), and possession of drug paraphernalia (guilty plea), as well as for procedural violations such as failure to appear in court. Petitioner conceded that Ms. Hewes has bailed him out of jail on several occasions since she took over Handi House. Despite Petitioner's unreliability, Ms. Hewes continued to find work for him at Handi House. Petitioner lived directly behind the business, which helped to make him available on short notice. Ms. Hewes continued to use Petitioner even after Petitioner's stepson, who lived with Petitioner, was arrested for breaking into Ms. Hewes' office and stealing checks from the company checkbook. Ms. Hewes disputed Petitioner's contention that Handi House never properly paid him or deducted payroll taxes from his paychecks. In fact, it was Petitioner who insisted on payment as an independent contractor rather than an employee. Ms. Hewes testified that in 2008, her accountant advised her that if she was going to pay Petitioner more than $5,000 per year, she either had to place him on the payroll and have him work regular hours, or give him a Form 1099 if he was going to continue with piecemeal work. Ms. Hewes offered to place Petitioner on the Handi House payroll as a full-time employee. Petitioner declined the offer because he owed back child support and feared that it would be deducted from his pay if he became a regular employee. At the hearing, Ms. Hewes presented a Form 1099 for Petitioner showing that Handi House paid Petitioner $13,211.25 in nonemployee compensation during the year 2009. Ms. Hewes' testimony that Petitioner was always paid for his work, that he was paid in the manner of his choosing, and that Handi House properly reported the payments, is credited. The events that precipitated the dispute in this case began on a Friday in November 2009, when Petitioner went out on a delivery with Terrell "Peanut" Odom, a full-time employee of Handi House who drove the delivery truck. Mr. Odom is white. Ms. Hewes' undisputed testimony was that Petitioner and Mr. Odom were friendly with each other. They spent time together away from work, and had sold cars to each other. On the day in question, Petitioner and Mr. Odom had an argument on the way to make a delivery. Petitioner declined to describe the subject matter of the argument, but it so angered Mr. Odom that he turned the truck around and drove back to Handi House. Mr. Odom told Ms. Hewes that he did not want to work with Petitioner, and drove off alone to make the delivery. On the following Monday, Mr. Owens continued to refuse to take Petitioner with him on deliveries. Because Mr. Odom was a solid, reliable employee, Ms. Hewes declined to force him to work with Petitioner. Rather, she found work for Petitioner to do on the company's lot in Starke. She hoped that with time, tempers would cool and matters would return to normal. Petitioner worked around the Handi House lot for five days. On the fifth day, Petitioner's wife, Barbara Fraizer, left an abusive voicemail message for Ms. Hewes, who testified that Ms. Fraizer sounded drunk. Ms. Fraizer made threats of violence against Ms. Hewes, Ms. Hewes' mother, and employees of Handi House. Ms. Hewes testified that this was the final straw. She advised Petitioner that he was not to set foot on the Handi House lot again. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to anyone at Handi House. At the hearing, when Petitioner was asked whether he believed Ms. Hewes' motive in dismissing him was racial, he responded, "Not really." Petitioner offered no credible evidence that Handi House discriminated against him because of his race in violation of chapter 760, Florida Statutes. In an attempt to show disparate treatment between himself and similarly situated employees who were not members of the protected class, Petitioner testified that a white secretary named "Rebecca" was dismissed by Ms. Hewes on much more generous terms than was Petitioner. Petitioner testified that Rebecca received several checks at the time of and even after her dismissal, whereas Petitioner received only a few days of "piss work" after Mr. Odom refused to work with him. Ms. Hewes testified that Rebecca was not a secretary but a salesperson, and that the checks she received at the time of her dismissal and shortly thereafter were for commissions that she had earned. Ms. Hewes' testimony on this point is credited. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Handi House for his dismissal.2/ Partly out of loyalty to her father, and partly because of her genuine affection for Petitioner, Ms. Hewes continued to find work for Petitioner long after most business owners would have sent him packing. This is clearly not a case of racial discrimination, but something in the nature of a family argument that got out of hand. The evidence established that Petitioner was considered a good employee when he was sober and not in trouble with the law, and that Handi House made every good faith effort to keep him on the job. Ms. Hewes testified that she would have offered to bring Petitioner back to work at Handi House if not for his insistent pursuit of what she considered an unfounded and insulting claim of racial discrimination. The fact that Handi House had a long history of forbearance in regard to Petitioner's erratic behavior did not oblige it to continue that forbearance in perpetuity. When Ms. Hewes finally became fed up with Petitioner, she was not motivated by considerations of race, as Petitioner himself candidly admitted at the hearing.
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 Handi House of Starke, Inc., did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 26th day of May, 2011, 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 26th day of May, 2011.
The Issue The issue is whether Respondent, Mojo Old City BBQ ("Mojo"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on his gender.
Findings Of Fact Mojo is an employer as that term is defined in section 760.02(7), Florida Statutes. Mojo owns and operates a restaurant at 5 Cordova Street in St. Augustine. Mojo has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, gender, national origin, or any other categories of persons protected by state or federal anti- discrimination laws. The policies also provide a specific complaint procedure for any employee who believes that he or she is being discriminated against or harassed. At the time of his hiring, Petitioner received an orientation that thoroughly explained the anti-discrimination and reporting policies. Testimony at the hearing established that Petitioner was again informed of these policies at an employee insurance meeting held in October 2013. Petitioner, a black male, was hired by Mojo on August 2, 2013, as a dishwasher. Petitioner testified that “from day one” he was called names and harassed by everyone at Mojo, employees and managers alike. He stated that an employee named Linwood Finley would yell that he didn’t want to work with a man who looked like a girl, or a “he/she.” Mr. Finley said, “I don’t want to work with a man that can't have kids.” Petitioner testified that the managers and staff would accuse him of looking between their legs. Employees would walk up to him and try to kiss him. He was told that he had to go along with these antics or find somewhere else to wash dishes. Petitioner testified that he believed he was fired for refusing to kiss other male employees. He had seen Mr. Finley and another male employee kissing behind the restaurant. He stated that two male employees had tried to kiss him and he refused their advances. Petitioner testified that he complained about the kissing to anyone who would listen. He said, “I’m not a woman, I’m a man. I got to come in here every day to the same stuff over and over. Y’all act like little kids.” Petitioner stated that when he complained, the harassment would stop for the rest of that day but would resume on the following day. Petitioner testified that there is a conspiracy against him in St. Augustine. For the last five years, he has been harassed in the same way at every place he has worked. Petitioner specifically cited Flagler College, the Columbia Restaurant, and Winn-Dixie as places where he worked and suffered name calling and harassment. Petitioner testified that he wanted to call several employees from Mojo as witnesses but that he was unable to subpoena them because Mojo refused to provide him with their addresses. Petitioner could provide no tangible evidence of having made any discovery requests on Mojo. Petitioner was terminated on November 29, 2013, pursuant to a “Disciplinary Action Form” that provided as follows: Roderick closed Wednesday night2/ in the dish pit. Again we have come to the problem with Roderick not working well with others causing a hostile work environment. This has been an ongoing issue. This issue has not resolved itself, and has been tolerated long enough. Roderick has been talked [to] about this plenty of times and written up previously for the same behavior. The documentary evidence established that Petitioner had received another Disciplinary Action Form on October 2, 2013, providing a written warning for insubordination for his hostile reaction when a manager asked him to pick up the pace in the evening. Laura Jenkins, the front-house supervisor at Mojo, was present at Mojo on the night of November 27, 2013. She testified that Petitioner had a history of getting into arguments with other kitchen employees that escalated into screaming matches during which Petitioner would commence calling the other employees “nigger.” Ms. Jenkins stated that on more than one occasion she had asked Petitioner to cease using “the ‘N’ word.” On the night of November 27, Petitioner was running behind on the dishes, so Ms. Jenkins asked another kitchen employee, Colin Griffin, to pitch in and help him. Petitioner did not want the help and argued with Mr. Griffin. Ms. Jenkins testified that Petitioner was screaming and cursing. The situation was so volatile that Ms. Jenkins felt physically threatened by Petitioner. She was afraid to discipline him that evening while she was the sole manager in the restaurant. On November 29, Ms. Jenkins met with kitchen manager Billy Ambrose and general manager Linda Prescott. They decided that Petitioner’s actions could not be tolerated anymore and that his employment would be terminated. Mr. Ambrose testified that on several occasions he sent people to help Petitioner in the dish pit and Petitioner refused their help. Petitioner would get into arguments with other employees over such things as the proper way to stack dishes. Mr. Ambrose named four different employees, including Mr. Finley, whom he sent to help Petitioner. Each one of them reported that Petitioner started an argument. Mr. Ambrose stated he went in to help Petitioner himself on one occasion and that Petitioner “kind of gave me attitude” despite the fact that Mr. Ambrose was his supervisor. Mr. Ambrose testified that Petitioner had an argument with Mr. Finley one morning that resulted in Mr. Ambrose having a cautionary talk with both employees. Mr. Ambrose sent Mr. Finley to help Petitioner in the dish pit. Petitioner stated, “Nigger, I don’t need your help.” Mr. Ambrose asked if there was a problem. Petitioner said, “No, we’re fine.” Mr. Ambrose asked Mr. Finley if everything was all right. Mr. Finley replied, “Yeah, I guess he’s just having a bad day.” Mr. Ambrose returned to his work only to find, five minutes later, that the two men were nose to nose arguing about the fact that Mr. Finley wasn’t washing dishes the way Petitioner liked. Ms. Jenkins, Mr. Ambrose, and Ms. Prescott all testified that they had never seen another employee harass Petitioner and had never heard of such a thing occurring. Petitioner never complained to any of these supervisors about discrimination or harassment of any kind. All three testified that they had never seen male employees kissing one another on the job nor seen any male employee attempt to kiss Petitioner. The three supervisors never heard any employee make comments about Petitioner’s appearing to be a girl. Ms. Jenkins testified that as a gay woman she would absolutely not allow any discrimination based on Petitioner’s gender orientation. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Mojo for his termination. Petitioner offered no credible evidence that Mojo's stated reasons for his termination were a pretext for discrimination based on Petitioner’s gender. Petitioner offered no credible evidence that Mojo discriminated against him because of his gender in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Mojo. There was no credible evidence that Petitioner ever complained to a superior about the alleged harassment.
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 Mojo Old City BBQ did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 23rd day of February, 2015, 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 23rd day of February, 2015.
The Issue The issue is whether Respondent, City of Ocala (“the City”), retaliated against Petitioner, Nyleah Jackson (“Petitioner” or “Ms. Jackson”), for exercising her right to file a claim of employment discrimination against the City pursuant to section 760.10, Florida Statutes (2018).1/
Findings Of Fact The City is an employer as that term is defined in section 760.02(7). Petitioner, an African American female, was hired by the City as an Administrative Specialist II on May 2, 2016. She worked in that job position until her resignation on February 7, 2018. Petitioner initially worked in the City’s Electric Utility Department and then transferred to the Public Works Department. Her duties were primarily secretarial, clerical, and administrative. Petitioner testified that when she started in Public Works, her direct supervisor was Tom Casey, but that at some point Judy Wade appeared to take over at least some of those supervisory duties. In her telling, Petitioner never recognized Ms. Wade as her direct supervisor except as to specific tasks delegated by Mr. Casey. Ms. Wade was the Fiscal Administrator for Public Works. She testified that Tom Casey and Darren Park are her superiors in Public Works. Ms. Wade credibly testified that she was Petitioner’s direct supervisor for the entire time that Petitioner worked in Public Works. Ms. Wade’s supervisory duties included monitoring Petitioner’s attendance at work and her leave requests. Petitioner’s testimony that she was unaware Ms. Wade was her direct supervisor for all purposes is not credited. On or about August 25, 2017, Petitioner presented a formal grievance to the City alleging that she had been discriminated against because of her race when she was not hired for a vacant Administrative Assistant III position. On or about August 31, 2017, Human Resources and Risk Management Director Jared Sorensen spoke with Petitioner and asked her to clarify whether she was pursuing a formal grievance under the City’s Collective Bargaining Agreement (“CBA”) with the International Brotherhood of Electrical Workers or under the City’s Employee Handbook. Petitioner responded that she wished to file her grievance under the CBA. On September 13, 2017, Petitioner sent an email to Mr. Sorensen, with copies to Mr. Casey and Mr. Park. The email stated as follows, in relevant part: Both the City of Ocala Employee Handbook and Collective Bargaining Agreement allows [sic] a response in writing within 10 business days of receipt of the grievance. I spoke with Tom Casey and Darren Park as well as sent my grievance, via interoffice to Human Resources, on August 25, 2017. From my meeting, I gathered that classification matters, discriminatory/biased hiring decisions and equal pay issues is [sic] in the Human Resource jurisdiction. I received a call last week from Jared stating that the target response date was September 8th, 2017 but I would have a definitive response by September 11th, 2017. I plan to hold my employer/HR accountable and liable to this deadline as promised. It is now September 13th with no response. The email concluded with a demand for a response regarding Petitioner’s remedies no later than September 14, 2017. The record evidence indicates that the City’s response was delayed for two reasons. First, Petitioner had indicated that she wished to pursue her grievance through the CBA, and Mr. Sorensen’s conversations with Petitioner’s union representative led him to believe that Petitioner’s grievance was going to be refiled to clearly establish a starting date for the CBA process. Second, Hurricane Irma had just passed through the state, causing significant damage in Marion County and delaying the City’s ability to respond to non-emergency matters such as Petitioner’s grievance. Of greater significance to this retaliation case, Petitioner’s direct supervisor, Ms. Wade, was not copied on any of the correspondence regarding Petitioner’s discrimination claim or her grievance. The only way Ms. Wade would have known of these matters was through word-of-mouth in the office. Ms. Wade credibly testified that she was unaware of any of these matters at the time they were occurring. Petitioner believed that Ms. Wade knew of her complaints, but provided no direct evidence of Ms. Wade’s knowledge. One week after her email to Mr. Sorensen, on September 20, 2017, Petitioner interviewed for an open position in the City’s Fleet Department. The Fleet Department is separate from Public Works and is located in a different building. Ms. Wade testified that Petitioner did not inform her that she would be absent from the Public Works office or that she would be interviewing for a position in the Fleet Department. Ms. Wade stated that she checked Petitioner’s office and saw that she was not present. Ms. Wade asked a co- worker about Petitioner’s location and was informed that Petitioner was out at a job interview. Petitioner testified that she told Ms. Wade that she would be out of the office. She did not tell Ms. Wade why she was going out. Petitioner testified that she believed Ms. Wade was not her supervisor and had no reason to know that she was going out on a job interview. Petitioner stated that she told Mr. Casey why she would be out of the office. Petitioner did not call Mr. Casey as a witness to corroborate her version of events. As indicated above, the undersigned does not credit Petitioner’s assertion that she did not believe Ms. Wade was her direct supervisor. When Petitioner returned to the office, Ms. Wade informed her that she was required to use paid time off (“PTO”) for personal business such as job interviews. Ms. Wade sent a request through “Kronos,” the City’s payroll software system, to dock Petitioner for 30 minutes of PTO for the time she was not in the office. Within a few days of making the Kronos request, Ms. Wade discussed the matter with Mr. Sorensen, who told her that City policy provided that employees could interview for other open positions within the City without using any PTO. The time used for such internal interviews was to be treated as regular work time. Evidence produced at the hearing indicated that Petitioner had gone out on such internal interviews previously and not been charged with PTO. Ms. Wade, having learned that she was mistaken regarding City policy, took steps to restore Petitioner’s PTO. On September 26, 2017, Ms. Wade submitted a payroll correction to adjust Petitioner’s pay to her full regular hourly rate. On October 3, 2017, Ms. Wade informed Petitioner of her mistake and that she had reversed the docking of Petitioner’s PTO. Petitioner contended that Ms. Wade’s docking of her pay was in retaliation for her complaint of discrimination and filing of a grievance. Petitioner stated that Ms. Wade’s reversal of the PTO decision was due solely to the fact that Petitioner contacted her union representative about the matter. Petitioner conceded that the only evidence connecting her discrimination complaint to Ms. Wade’s action on September 20, 2017, was their proximity in time. Ms. Wade credibly testified that she did not know about Petitioner’s discrimination complaint on September 20, 2017, and that no one working for the City ever instructed her to take any adverse action against Petitioner. On October 2, 2017, the FCHR received Petitioner’s initial Employment Complaint of Discrimination. The FCHR sent a Notice of Filing of Complaint of Discrimination to the City. The Notice was dated October 3, 2017, but was not received by the City until October 6, 2017. Ms. Wade testified that she was unaware of any potential claim of discrimination by Petitioner prior to October 6, 2017. Petitioner claimed that Ms. Wade was aware of Petitioner’s intention to file the discrimination complaint when Ms. Wade originally docked Petitioner’s PTO in September 2017. To support this claim, Petitioner first testified that one of the emails she sent regarding her potential discrimination complaint was copied to Ms. Wade. When the actual emails were produced by the City and showed that Ms. Wade was not copied on any of them, Petitioner testified that she had told Ms. Wade of her discrimination complaint at a meeting that included Ms. Wade and Mr. Park. Ms. Wade credibly testified that she had no memory of discussing the discrimination complaint with Petitioner at a meeting. Petitioner did not produce Mr. Park as a witness to corroborate her testimony regarding a meeting. Ms. Wade’s testimony is credited on this point. Petitioner failed to demonstrate that Ms. Wade’s actions on September 20, 2017, were in retaliation for Petitioner’s discrimination complaint. On November 20, 2017, the City hired Erica Wilson as the new Administrative Specialist III to work in Public Works. She assumed the duties of the previous Administrative Specialist III, Melinda Day, who had retired. Petitioner and Ms. Day had worked cooperatively in preparing payroll reports for Public Works. Petitioner would summarize the payroll cards for the stormwater division, and Ms. Day would summarize the payroll cards for the streets and traffic divisions. Once the summaries were completed, either Petitioner or Ms. Day would transmit them by email to the Payroll Department. Petitioner and Ms. Day alternated the task of sending the email to Payroll, with each employee transmitting the information every other week. After Ms. Day retired, Public Works was shorthanded for a time. During this period, Petitioner began summarizing all of the payroll cards for the stormwater, streets, and traffic divisions, and transmitting all of that information to Payroll on a weekly basis. After Ms. Wilson was hired at Public Works, Petitioner continued to perform her new duties while Ms. Wilson came up to speed on her new job. In January 2018, Ms. Wade convened a meeting with Petitioner and Ms. Wilson to discuss the transition for Ms. Wilson to take over the payroll duties formerly performed by Ms. Day. At the conclusion of the meeting, Ms. Wade announced that Ms. Wilson would be in charge of sending all the emails to Payroll and Petitioner would continue summarizing all of the pay cards for all three divisions of Public Works.2/ In other words, the work would be divided more or less as it was before Ms. Day retired. At the meeting with Ms. Wade and Ms. Wilson, Petitioner voiced no dispute or concerns with the division of duties ordered by Ms. Wade. Neither Ms. Wade nor Ms. Wilson recalled Petitioner’s being upset by or objecting to the plan outlined by Ms. Wade. Petitioner herself conceded that she said nothing to indicate her disagreement with the re-assignment. Petitioner contends that Ms. Wade’s decision to take some of Ms. Day’s former duties from her and assign them to Ms. Day’s successor was a retaliatory reduction of her job duties. Again, Petitioner’s only evidentiary support for her contention is that the alleged retaliatory action occurred after she made her discrimination complaint with the FCHR. Ms. Wilson testified that she considered the entire matter of payroll duties to be a minor part of her job. Ms. Wade testified that her only intention in redistributing duties was to restore the status quo ante from before Ms. Day retired. Also in January 2018, another event caused Petitioner to believe that Ms. Wade was retaliating against her. Petitioner alleged that Ms. Wade further reduced her job duties by forbidding her to contact vendors used by the City or to contact City employee John Long, who was the City’s Vendor Relations Manager. The specific issue concerned Petitioner’s contacts with UniFirst, the vendor who laundered uniforms for every department of the City. Petitioner’s routine job duties included taking delivery of uniforms for Public Works employees from UniFirst drivers. She discussed with those drivers any issues regarding the number of uniforms delivered, the condition of the uniforms, and the amount of the invoice. Petitioner had no responsibility for dealing with UniFirst’s management on behalf of the City as a whole. In April 2017, Petitioner inserted herself into a quality of service dispute with UniFirst. Uniform shirts were coming back from UniFirst in a soiled and threadbare condition. At first, Petitioner followed protocol and addressed her complaints to Mr. Long, who conveyed them to Jeff Peterson, UniFirst’s district service manager. However, after some back- and-forth between Mr. Long and Mr. Peterson, Petitioner elected to send an email of her own to Mr. Peterson. Ms. Wade considered this action unprofessional and counseled Petitioner about it. Ms. Wade did not believe further discipline was necessary because the situation was unlikely to recur. However, in January 2018, a similar quality control issue arose with UniFirst. Mr. Long and Petitioner exchanged emails that indicated Mr. Long believed Petitioner was the City’s point person regarding UniFirst, based on her handling of the previous issue in 2017. However, Ms. Wade directed Petitioner not to contact UniFirst management directly because the City employed Mr. Long to handle citywide vendor relations. Petitioner alleged that Ms. Wade had instructed her to have no contact with anyone from UniFirst, and that this instruction amounted to a retaliatory reduction of her assigned duties. At the hearing, Ms. Wade made it clear that her order was meant only to stop Petitioner from contacting UniFirst’s management, an action that was never in Petitioner’s scope of duties. Petitioner was still expected to deal with the UniFirst driver who delivered uniforms to Public Works. Her job duties were unchanged. Petitioner alleged that Ms. Wade retaliated against her by denying her leave to which she was entitled. On February 5, 2018, Petitioner requested that she be allowed to use 2.5 hours of accrued “safety time”3/ that afternoon, and her “floating holiday”4/ on the following day, February 6, 2018. Ms. Wade denied the request. Petitioner nonetheless left work early on February 5, 2018, and did not come into work on the following day, missing 10.5 hours of work in total. The City applied Petitioner’s accrued PTO time, 6.2 hours, to the time she missed work. For the remaining 4.3 hours, Petitioner was charged for leave without pay. Ms. Wade testified that she denied the leave request because the Public Works Department has a written policy stating that if an employee is requesting fewer than five days off, the request should be made no less than 48 hours prior to the employee’s absence.5/ Ms. Wade stated that the policy’s purpose was to ensure that enough employees were present to perform needed work. Supervisors have discretion to deviate from the policy, but only where the employee shows good cause for the failure to provide sufficient notice. In this case, Petitioner provided Ms. Wade with no reason for her request. Petitioner testified that she was never made aware of the policy, and suggested that the City invented the policy after the fact as a response to her claim of discrimination. Petitioner presented documents showing that she had previously been allowed to take time off with less than 48 hours’ notice. Ms. Wade reviewed Petitioner’s documents at the hearing. She did not recall the specific details of any particular leave request, but testified as to her general practice in granting leave with less than 48 hours’ notice. Ms. Wade stated that in some cases, Petitioner had likely made an oral request more than 48 hours prior to the leave, but did not submit the written request into the Kronos system until later. In such cases, Petitioner’s leave request would have been granted. In other cases, Petitioner had likely presented Ms. Wade with extenuating circumstances justifying the short notice. Ms. Wade demonstrated her department’s even-handed application of the policy by producing contemporaneous records showing that other Public Works employees had been denied the use of safety hours and floating holidays when they failed to give 48 hours notice to their supervisors. Petitioner failed to establish that Ms. Wade’s denial of her leave request was retaliatory. Petitioner offered evidence on two issues that were beyond the scope of her Employment Complaint of Discrimination regarding retaliation. First, she claimed that the City retaliated against her by denying her the ability to use “flex time” to work an extra hour on February 1, 2018, so that she could leave an hour early on February 2, 2018. Petitioner claimed that this denial was in derogation of the City’s policy and prior practice. Second, Petitioner claimed that the City retaliated against her by denying her request to attend a training class. The City objected to Petitioner’s presentation of this evidence because these matters were not covered in Petitioner’s second Employment Complaint of Discrimination regarding retaliation. Petitioner conceded that these matters were not mentioned in her retaliation complaint, but maintained that she had submitted materials on these issues to, and discussed them with, the FCHR. She also raised the issues in her subsequent Petition for Relief. The undersigned allowed Petitioner to present her evidence because of the ambiguity of the procedural situation. It appears that during its investigative phase, the FCHR accepted evidence from Petitioner as to issues outside the four corners of Petitioner’s retaliation complaint. However, the FCHR ultimately issued no finding as to probable cause. Thus, it is unclear which issues the FCHR formally considered. While finding persuasive the City’s argument that Petitioner should be held to the issues raised in her Employment Complaint of Discrimination, the undersigned decided that if he were to err, it would be on the side of allowing Petitioner to present all of her evidence at the hearing. As to the first issue outside the Employment Complaint of Discrimination, Petitioner testified that, on February 1, 2018, she requested that she be allowed to work an extra hour and then use the “flex time” to take an hour off work the next day. Petitioner presented an email chain between Ms. Wade and her regarding this request. Ms. Wade ultimately denied the request on the ground that the City does not allow employees to “flex ahead,” i.e., work extra time now in anticipation of taking time off later. Ms. Wade told Petitioner that she would be allowed to flex an hour on February 1, 2018, and then work through her lunch hour on February 2, 2018. Petitioner testified that the City had always allowed her and other employees to flex ahead, and that the denial in this instance could only be explained as retaliation by Ms. Wade for her discrimination complaint. Petitioner did not offer evidence of the City’s written policy on flex time or evidence that the City even had such a policy. She offered exhibits purporting to demonstrate that she and other employees had been allowed to work extra time on one day to take time off on a later date. However, the coding on these documents was not clear and Petitioner did not adequately explain them. The City declined to offer evidence on this issue because of its contention that it was outside the scope of Petitioner’s Employment Complaint of Discrimination. Petitioner failed to establish that Ms. Wade’s stated view of the City’s flex time policy was incorrect or that Ms. Wade deviated from past policy and practice by declining to allow Petitioner to flex ahead on February 1, 2018. As to the second issue outside the Employment Complaint of Discrimination, Petitioner testified that on October 12, 2017, she submitted a request to Ms. Wade to take two training courses being offered by the City: “Attitude Means Everything” and “Communicating with Diplomacy and Tact.” Ms. Wade gave Petitioner permission to take the first class but denied her permission to take the second. Ms. Wade testified that the “Communicating with Diplomacy and Tact” course was designated as a “leadership” course, meaning that only supervisors are generally approved to take it. Petitioner’s position with the City was not supervisory. Petitioner showed Ms. Wade a document that Petitioner stated was a list of employees who had attended the “Communicating with Diplomacy and Tact” course. Petitioner asked Ms. Wade whether all of the listed people were supervisors. Ms. Wade testified that she could not answer the question because she did not know the people on the list, none of whom were employed by Public Works. Petitioner herself did not identify the employees on the list. In the absence of any evidence to demonstrate that Ms. Wade did anything more than follow City policy on training course participation, it cannot be found that Ms. Wade retaliated against Petitioner by denying her request to take the “Communicating with Diplomacy and Tact” course. On February 7, 2018, Petitioner voluntarily resigned her employment with the City. Petitioner alleged that her resignation was a “constructive discharge” due to the City’s denial of paid leave time for February 6, 2018, as well as the other allegedly adverse retaliatory actions taken by the City since the filing of her discrimination complaint. Petitioner offered no credible evidence that the City retaliated against her for engaging in protected activity. The only employee specifically cited by Petitioner as allegedly retaliating against her was her direct supervisor, Ms. Wade. The evidence established that Ms. Wade became aware of Petitioner’s discrimination complaint no earlier than October 6, 2017, after she allegedly retaliated against Petitioner by requiring her to use PTO for an internal job interview. Additionally, Ms. Wade rectified the situation as soon as Mr. Sorensen corrected her understanding of City policy. None of the later allegations of retaliation were credible. In January 2018, Ms. Wade gave Petitioner some minor Administrative Assistant III duties at a time when Public Works was shorthanded, then gave those duties back to the Administrative Assistant III position after the new person was hired and learned the job. There was no reason for Petitioner to take offense at this routine reshuffling of minor job duties. Also in January 2018, Ms. Wade directed Petitioner not to contact UniFirst’s management regarding citywide vendor performance issues. Such contacts were not part of Petitioner’s job duties and Ms. Wade had already counseled Petitioner against taking it upon herself to send emails to UniFirst’s management. Petitioner’s actual job duties in relation to UniFirst’s delivery of uniforms to the Public Works Department never changed. Ms. Wade’s denial of Petitioner’s February 5, 2018, leave request was in keeping with the express policy of the Public Works Department that leave requests be made at least 48 hours prior to the employee’s absence from work. The evidence established that this was not a rigid policy, but Petitioner failed to show that she presented Ms. Wade with the kind of extenuating circumstances that historically have been the basis for granting leave requests less than 48 hours before the employee’s proposed absence. There was nothing retaliatory about Ms. Wade’s following the stated policy of Public Works. Petitioner was allowed to raise two issues that were not included in her Employment Complaint of Discrimination regarding retaliation. As to these issues, Petitioner failed to offer proof sufficient to establish that either Ms. Wade’s denial of her request for flex time or Ms. Wade’s denial of Petitioner’s request to attend a “leadership” training course was an incident of retaliation. Petitioner failed to prove any incidents of retaliation. Because she voluntarily resigned her position with the City, Petitioner did not establish that the City took an adverse employment action against her in any form.
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 City of Ocala did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 28th day of May, 2019, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2019.
The Issue Whether Petitioner's suspension in March 2004 and subsequent dismissal in March 2004 were not, in fact, imposed in consequence of her gross insubordination (which insubordination Respondent allegedly used as a pretext for the adverse employment actions), but rather were in truth retaliatory acts taken by Respondent because Petitioner had filed a charge of discrimination against Respondent.
Findings Of Fact The Order Relinquishing Jurisdiction contained a statement of undisputed material facts, which provided as follows: A. [a.] [Petitioner Diane] Scott [("Scott")] was employed as a teacher's aide in the Monroe County Public School System for approximately 13 years. The [Monroe County School] Board [(the "Board"), which is the governing body of Respondent Monroe County School District,] suspended [Scott] without pay in March 2004 pending termination for just cause. Scott timely requested a formal hearing. [b.] On August 18, 2004, Administrative Law Judge Robert E. Meale of the Division of Administrative Hearings ("DOAH") conducted a formal hearing in DOAH Case No. 04-2060 to determine whether Scott's employment should be terminated. Judge Meale issued a Recommended Order on October 25, 2004, holding, on the basis of extensive findings of fact, that Scott had "repeatedly refused to obey direct orders, essentially to allow the school system to function as an educational resource, free from her harassment of other employees trying to do their jobs." Judge Meale recommended that the Board terminate Scott's employment for just cause, i.e. gross insubordination. [c.] On November 16, 2004, the Board entered a Final Order adopting Judge Meale's Recommended Order in its entirety. Scott did not appeal the Final Order. B. [d.] In November 2004, Scott filed with the FCHR and the EEOC a Charge of Discrimination, signed November 12, 2004 (the "Charge"), wherein she alleged that the Board had retaliated against her for having filed an earlier charge of discrimination. The Charge was received by the FCHR on or about November 22, 2004, and docketed as Charge No. 150-2005-00405. [e.] In the Charge, Scott stated the "particulars" of her claim against the Board as follows: I am black. I filed a charge of discrimination under 150-2004-00146. In retaliation, Respondent placed papers in my fie [sic] that pertained to someone else and papers that were not signed by me. In further retaliation, Respondent placed me on suspension. I believe all of the above occurred in retaliation for filing the aforementioned charge in violation of Title VII of the Civil Rights Act of 1964, as amended.[1] Scott also alleged that the unlawful retaliation took place between the dates of August 18, 2004, and August 24, 2004.2 [f.] . . . Charge No. 150-2004-00146 (the "Prior Charge"), which allegedly triggered the Board's allegedly retaliatory acts, had been brought against the Board in November 2003. . . . [To repeat for emphasis,] the retaliation claim asserted in the [present] Charge is based on alleged adverse employment actions that the Board took, allegedly, in response to Scott's filing the Prior Charge in November 2003. [g.] In her Charge Scott alleged that the Board's unlawful retaliation consisted of (a) placing papers in her personnel file that didn't belong there and (b) putting her on suspension. Regarding the allegedly spurious papers, . . . [f]ive . . . are . . . documents pertaining to another teacher's aide in Monroe County whose name is "Diane M. Scott." (Petitioner Scott is also known as Diane Hill Scott but not, so far as the record reveals, as Diane M. Scott.) The papers relating to the "other" Diane Scott are: (1) an Oath of Public Employee form dated December 20, 1996; (2) an Employer's Statement of Salary and Wages dated April 24, 2001; (3) an Employer's Statement of Salary and Wages dated March 13, 2002; (4) a Civil Applicant Response dated December 20, 1996, which notes that the individual (identified as "Diane Marie Scoh") had failed to disclose a prior arrest; and (5) a copy of the school district's anti-discrimination policy, apparently signed by the other Ms. Scott on August 23, 2002. [h.] In addition to these five papers, Scott claims that her personnel file contained an unsigned copy of the school district's anti-discrimination policy, bearing the handwritten note "Diane Hill Scott refused to sign——8/24/00." Scott asserts that before last year's administrative hearing, she had never seen this particular document. Because of that, she alleges, its presence in her file is evidence of discriminatory retaliation. [i.] Regarding the alleged retaliatory suspension [on which the Charge is based in part], Scott [actually] was referring to three separate suspensions: (1) a three-day suspension in May 2003; (2) a three-day suspension in October 2003; and (3) the suspension in March 2004 that was part and parcel of the proceeding to terminate Scott's employment. It is undisputed that Scott was in fact suspended from employment on each of these three occasions. However, [by] a letter to Scott from the Director of Human Resources dated October 3, 2003, [the Board had] formally rescind[ed], as the product of "error and miscommunication," the three-day suspension Scott was to have served that month. [j.] On April 26, 2005, the EEOC issued a Dismissal and Notice of Rights on Scott's Charge against the Board. In this notice, the EEOC stated that it was unable to determine whether the Board had violated Scott's civil rights. Thereafter, on May 12, 2005, the FCHR issued Scott a Right to Sue letter. Scott timely filed a Petition for Relief ("Petition") with the FCHR on June 6, 2005. The FCHR immediately transferred the Petition to DOAH, initiating the instant action. The undersigned hereby adopts the foregoing as findings of fact. Following the principle of estoppel by judgment (discussed in the Conclusions of Law below), it is found that, prior to being suspended from employment in March 2004, Scott repeatedly had refused to obey direct orders; she had been, in other words, grossly insubordinate at work. The evidence in the record is insufficient to persuade the undersigned——and consequently he does not find——that the Board used Scott's gross insubordination as a pretext for taking adverse employment actions, namely suspension and dismissal, against Scott. The evidence is likewise insufficient to establish, and thus it is not found, that the Board in fact suspended and discharged Scott in retaliation for filing the Prior Charge. It is determined, therefore, as a matter of ultimate fact, that the Board did not unlawfully retaliate against Scott when it terminated her employment on the ground that she had been grossly insubordinate, which misbehavior constitutes just cause for firing a teacher's aide, see §§ 1012.01(2)(e) and 1012.33(1)(a), Fla. Stat., and hence is a legitimate, non- retaliatory basis for taking adverse employment action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding the Monroe County School District not liable to Diane Scott for retaliation or unlawful discrimination. DONE AND ENTERED this 11th day of May, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006.
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 The issue to be resolved in this proceeding concern whether the Petitioner's decedent, Barbara J. Taylor, was discriminated against in an employment decision (termination) by the Respondent based upon her gender and alleged disability.
Findings Of Fact The Petitioner, James Saemenes, is the Personal Representative of the Estate of Barbara J. Taylor. Barbara J. Taylor was the Petitioner's sister. Ms. Taylor, at times pertinent to the facts in this case, had been an employee of the Utilities Department of the City of Fort Walton Beach, working in the Utility Wastewater Treatment Facility Laboratory as Laboratory Manager. The Petitioner, Mr. Saemenes, did not participate in the hearing. The City of Fort Walton Beach provides public utilities to its citizens including wasterwater operations. Mr. John Hofstad is employed as the utilities director for the city, and oversees the city's wastewater operation. Mr. Hofstad was Ms. Taylor's supervisor at times pertinent to this case. The wastewater operation is responsible for collection and treatment of raw waste to suitable discharge standards. There are 13 individuals employed at the wastewater treatment facility. The positions consist of one plant supervisor, eight licensed wastewater treatment plant operators, one pre-treatment coordinator, two maintenance employees, and one laboratory manager. Ms. Taylor was the laboratory manager at times pertinent to this case and her immediate supervisor, Mr. Hofstad was responsible for evaluating her work and initiating any discipline against her, if necessary. Her duties included managing the day-to-day activities of the laboratory, collecting samples throughout the facility, analyzing samples, managing the quality assurance and quality control plan required by the State of Florida and associated daily paperwork. Her duties required effective cooperative interaction with other employees of the facility and the city on a daily basis. Over a substantial period of time, Mr. Hofstad received numerous complaints and expressions of concern from almost every employee regarding the appropriateness of Ms. Taylor's conduct while at work. Employees complained that she was intimidating and abrasive toward them. She demeaned fellow members of the staff based upon their educational background or their level of knowledge about the operations and their jobs. Mr. Hofstad counseled Ms. Taylor on a number of occasions regarding her co-workers' concerns. Mr. Hofstad witnessed Ms. Taylor harassing Mr. McDowell, the Pre-treatment Coordinator, while working in his office. Specifically, she physically placed an object in Mr. McDowell's pocket despite his previous request for her to refrain from distracting him. Mr. McDowell became visibly upset when Ms. Taylor thereafter made an obscene gesture towards him as she left the office area. Mr. Hofstad drafted a memorandum on December 6, 1996, pertaining to the aforementioned incident and provided a written disciplinary action form to Ms. Taylor because of it. Mr. Hofstad executed a personnel evaluation regarding Ms. Taylor on December 9, 1996. She received an unsatisfactory rating in the area of cooperation with fellow employees and team-work. Mr. Hofstad gave Ms. Taylor that rating due to numerous employee complaints indicating that Ms. Taylor had initiated confrontations. Thereafter on March 6, 1998, Mr. Hofstad drafted a memorandum regarding a confrontation which had occurred the day before between Ms. Taylor and Mr. James Whitley. Without authorization Ms. Taylor directed Mr. Whitley to stop conducting certain tests because they would interfere with her job. Ms. Taylor possessed no supervisory authority over Mr. Whitley. When Mr. Hofstad intervened in the situation Ms. Taylor spoke to him in a insubordinate loud and hostile fashion. She raised her voice at Mr. Hofstad and stated that he did not know how to do his job much like the other individuals employed by him. Mr. Hofstad considered her tone and manner to be inappropriate and insubordinate. He executed a Notice of Disciplinary Action based on Ms. Taylor's actions and demeanor and gave her a copy. Thereafter on or about May 14, 1998, Mr. Hofstad was again verbally assaulted by Ms. Taylor. She spoke in an enraged, loud, and abusive manner in the presence of several subordinate employees. Ms. Taylor stated that Mr. Hofstad had no control over the laboratory. Following this incident which he also considered insubordination, Mr. Hofstad spoke to the Public Works Director his superior, Mr. Mark Tate, regarding Ms. Taylor's conduct. Mr. Tate reviewed Ms. Taylor's disciplinary history and in conjunction with Mr. Hofstad determined that the best course of action, after having tried graduated discipline was to terminate her employment. Mr. Hofstad and Mr. Tate spoke with the Human Resources Department Director regarding Ms. Taylor's behavior and potential termination. The Director of Human Resources agreed that Ms. Taylor's termination was appropriate considering her history of progressive discipline and current misconduct amounting to repeated insubordination. Thus Ms. Taylor's employment was terminated. Her termination was not based upon her gender. In fact, she was replaced in her position with another female, Ms. Harriett Holloway. The current laboratory manager, Melissa Woodall, is a female. Mr. Hofstad never discouraged Ms. Taylor from filling out complaint forms during the course of her employment. In fact, he provided such forms to Ms. Taylor in the event that she had a complaint. Her termination was not related to any complaint filed by her, or for engaging in any other protected activity such as applying for vocation rehabilitation benefits or assistance. Further, her termination was not related to any health conditions she possessed. Mr. Hofstad at the time was unaware of any disability or health condition endured by Ms. Taylor. He did not perceive her as disabled. She was fully capable of performing the duties of her job in terms of her physical abilities and would have continued to be employed but for the misconduct referenced above. She never requested any accommodations for any disability or impairment in the workplace from Mr. Hofstad or others in a supervisory role. Neither Mr. Hofstad, nor any other witness, described any occasion where Ms. Taylor was harassed by operations staff. According to unrefuted evidence of record, Ms. Taylor was always the harasser of other employees. Moreover, when Ms. Taylor sought assistance from Mr. Hofstad, he promptly addressed her concerns in a reasonable, unbiased way. The Petitioner never testified in this proceeding.
Conclusions Petitioner: No Appearance Respondent: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2007. COPIES FURNISHED: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James P. Saemenes, Personal Representative 46 Higgins Road Brighton, Tennessee 38011-3602
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 committed the unlawful employment practice alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a software engineer with almost 30 years of experience in the industry. From 2001 until August of 2006, Petitioner was employed by ITT Industries (ITT). Petitioner's employment with ITT came to an end when he was involuntarily terminated. Following his termination, Petitioner filed an employment discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging that ITT had discriminated against him because he suffered from Tourette's syndrome (which caused him to have vocal tics and to stutter). Petitioner did not take any action to pursue these allegations of employment discrimination beyond filing this complaint against ITT with the EEOC. Petitioner has been unable to obtain a "permanent job" as a software engineer since his termination by ITT. Respondent is a defense contractor that "make[s] [military] simulation and training equipment." In early 2008, Respondent was looking to fill a temporary software engineer position. Edge Dynamics was one of the outside employment agencies that Respondent used to assist it in the hiring process. On January 9, 2008, Edge Dynamics provided Petitioner's resume to Edward Kaprocki, a senior principal software engineer with Respondent. Mr. Kaprocki was responsible for interviewing applicants for the position and making hiring/rejection recommendations. After reviewing Petitioner's resume, Mr. Kaprocki "thought [it] looked interesting enough where it would worth talking to [Petitioner]," and he so advised Sandra Asavedo, his "point of contact" at Edge Dynamics. Ms. Asavedo made the necessary arrangements to set up a face-to-face interview between Mr. Kaprocki and Petitioner. The interview took place in Mr. Kaprocki's office on January 14, 2008. It lasted about 45 minutes to an hour. Petitioner seemed to Mr. Kaprocki to be "a little bit nervous," but Petitioner did not do or say anything to cause Mr. Kaprocki to believe that Petitioner suffered from any disability. During the course of the interview, Petitioner showed Mr. Kaprocki his personal website, which contained information about and pictures of "some of the projects that [Petitioner] had worked on." Based on the interview, Mr. Kaprocki determined that Petitioner did not have the skill-set that was needed for the position Respondent was seeking to fill. Immediately following the interview, Mr. Kaprocki went to his supervisor, Steve Preston, whose office was "right down the hall," and recommended that Petitioner not be hired to fill the position. Mr. Kaprocki then telephoned Ms. Asavedo to let her know that Petitioner was not going to be hired so that she could inform Petitioner. Mr. Kaprocki's decision to recommend against hiring Petitioner had nothing to do with Petitioner's suffering from Tourette's syndrome or his having filed an EEOC complaint against ITT. Indeed, at the time he made his decision, Mr. Kaprocki did not even know that Petitioner had Tourette's syndrome or had filed an EEOC complaint against ITT. Mr. Kaprocki first learned of these matters only after Petitioner had filed his Complaint in the instant case. After being told that he would not be hired for the position, Petitioner telephoned Mr. Kaprocki several times, pleading with Mr. Kaprocki to "reconsider hiring him." Mr. Kaprocki told Petitioner "that the decision had been made" and would not be reconsidered. Mr. Kaprocki felt that Petitioner, by making these telephone calls, was "badgering and harassing him." To satisfy his own personal curiosity (and for no other reason), Mr. Kaprocki looked online to find out more about the person who was subjecting him to this "badgering and harass[ment]."2 Mr. Kaprocki did not discover, as a result of his online search, that Petitioner had Tourette's syndrome or that Petitioner had filed an EEOC complaint against ITT. His search, however, did reveal certain comments Petitioner had made in an online forum that Mr. Kaprocki considered to be "extremely unprofessional." After reading these comments, Mr. Kaprocki was even more confident than he had been before he began his search that he had made the right decision in not recommending Petitioner for employment. Petitioner was never offered a position with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of any unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 May, 2009.
