The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
Findings Of Fact Respondent has taught in the State of Florida for 33 years. The last 26 of those years have been with the Dade County school system. His most recent assignment was at Coral Gables Senior High School as a Cooperative Education teacher. Part of the duties of a Cooperative Education teacher is to work two weeks each summer doing preplanning activities prior to the opening of the fall term. The two weeks are to be used for job development, developing training plans, getting training agreements signed by employers, visiting parents of students that will be in the program in, the fall, recruiting, and reviewing student files. One week is required to occur just prior to the opening of school in the fall. The second week can be taken at any time during the summer after summer school starts on July 5. During the summers of 1978, 1979, 1980 and 1981, Respondent had a summer job with the City of Miami as director of the lunch program in the City's parks. In that job, he supervised four monitors employed by the lunch program, who visited the parks and reported back to Respondent. Respondent also visited the parks to ensure that the lunch program operated efficiently, and he was responsible for much of the paperwork involved in the program, including tally reports. During each of the summers in question, the lunch program for the City of Miami ran for eight weeks. Although the Recreation Department of The City of Miami requires that its administrative offices be open during the normal working hours of 8:00 a.m. until 5:00 p.m., the same schedule was not required of persons working in the lunch program. The monitors working in the lunch program were part-time employees for the reason that the caterer commenced delivering lunches to the various parks at approximately 10:30 a.m. The anticipated schedule was that lunches would be served to the children involved in the program between noon and, hopefully, 1:00 p.m. but by 2:00 p.m. at the latest. Although there were more parks involved in the program than monitors, each park had its own supervisors overseeing operation within the park. If a problem arose regarding delivery of the lunches or during the serving of the lunches and neither Respondent nor any of the monitors were on site, the park's employees could temporarily resolve the problem and call the office at the City of Miami to advise of the need for any further assistance. During most of his eight-week employment with the City of Miami, Respondent worked normal hours involved in a 40-hour work week. However, during the summers of 1978, 1979, 1980 and 1981, two weeks of the City's lunch program involved the same two weeks when Respondent was employed by the School Board for his preplanning activities. The two-week periods (actually ten working days) when Respondent was on the payrolls of both the School Board of Dade County and the City of Miami were as follows: August 7-18, 1978; August 6-17, 1979; July 28-August 8, 1980; and August 10-21, 1981. Respondent was hired each of the summers involved by Basha Schlazer, the Recreation Program Supervisor for the City of Miami. Prior to Respondent's acceptance of the summer job each year, he advised Schlazer that he had a two- week preplanning period which would overlap the City's employment, during which time he would be a full-time employee of the School Board and he would have to work at Coral Gables Senior High School before he could undertake his duties at the City of Miami. Schlazer told Respondent not to worry about it, since his duties with the City could be worked around his duties with the School Board. Because his employment at the City of Miami would not interfere with his work hours at Coral Gables Senior High School during those two weeks inn question each year, Respondent accepted the position with the City of Miami. Schlazer was Respondent's immediate supervisor during his employment with the City of Miami. During the two-week employment overlap period each summer, Respondent went to Coral Gables Senior High School at approximately 7:30 to 8:00 a.m. He worked there each day completing the activities previously planned for in the plans completed by him, as required of all teachers prior to their summer employment. He completed all of the activities listed in his daily plans and left Coral Gables Senior High-School at approximately 1:30 p.m. each day. He then went to his job at the City of Miami, arriving there at approximately 2:00 to 2:30 p.m. He then worked at the City of Miami until approximately 5:00 p.m. He took home with him the paperwork he did not complete at his job with the City and completed that paperwork during the evenings and on weekends. The hours during which Respondent worked at home were supplemented, at Schlazer's request, by Respondent working on other activities involving the City of Miami, such as working at talent shows, dog shows and a hula-hoop contest, all during the evening or weekend hours. Respondent was not compensated for these extra activities, but rather, at Schlazer's direction, he continued to simply fill out payroll sheets so they reflected that he continued to work eight hours a day during those two weeks in question each year. By devoting his own time to his duties at the City during the two weeks in question each year, Respondent continued to enjoy his reputation at the City as a good worker, and the park lunch program ran smoothly at all times under his direction. The only difference which occurred in The lunch program during the two weeks of overlap is that during that time the park employees and monitors were instructed not to call in if there were a problem until after 2:00 p.m., when Respondent came to work. During each of The two weeks of each of the four summers in question, Respondent was never at the City of Miami in the mornings except on one occasion during the summer of 1981. On that day, Respondent worked at Coral Gables Senior High School until 11:00 a.m., when he was entitled to a break. During that break, he drove to the City of Miami to drop off a report that he had completed at home the night before. As he was leaving the City of Miami office to return to Coral Gables Senior High School, he received a telephone call from his department chairman at the school telling him that his principal wished to speak with him. During the regular school year, Respondent is not expected to be at Coral Gables Senior High School throughout the normal teaching day because of the nature of his teaching position. Rather, he is expected to be off the campus canvassing to find prospective employers, visiting parents, following up on job leads and otherwise doing the normal activities expected of a teacher in the Cooperative Education program. Although the contract between the School Board and the teachers' union specifies that the contractual workday for teachers in senior high schools is 7 hours and 20 minutes long, commencing at 7:30 a.m. and ending at 2:40 p.m., That was not necessarily Respondent's workday normally, since his job took him off the school site. Respondent believed that the work hours required during The two-week preplanning period were more lenient, and no evidence was introduced that Respondent had ever been advised of the specific time frame contained within the union's contract with the School Board. The School Board utilizes a form entitled "Voucher for In-County Travel Reimbursement and Monthly Visitation Report for Vocational Cooperative Teachers." Although Cooperative Education teachers are required to provide such forms for travel reimbursement regarding mileage and have been so advised during various monthly inservice meetings, some of those teachers do not fill out those forms for reimbursement, since they choose to claim those items on their personal income tax returns. Respondent is one of those teachers. If a teacher chooses not to fill out such a form, no monitoring is done by the School Board since there is no specific rule which would be violated by the failure to fill out such a form. It simply means that the School Board will not have to reimburse its employees for travel expenses. In his 33 years of teaching in the State of Florida, 26 years of which have been for the School Board of Dade County, Respondent has never been suspended or disciplined. No evidence was presented to show that Respondent's work with the City of Miami interfered with his School Board job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Notice of Charges filed against Respondent and reinstating him to his former position with full back pay. DONE and RECOMMENDED this 4th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1983. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 141 Northeast Second Avenue Miami, Florida 33132 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-464 GEORGE Y. BUTLER, Respondent. /
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
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 Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Ausbon Brown, Jr. (Petitioner), an African-American male was born on April 25, 1943. Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (FCHR) on December 5, 1997, alleging violation by the Florida Department of Labor and Employment Security (Respondent) of the Florida Civil Rights Act of 1992, as contained in chapter 760, part I, Florida Statutes. On August 18 1999, over 20 months later, FCHR issued a "Notice of Determination: No Cause." September 27, 1999, Petitioner filed a Petition for Relief, alleging that Respondent had subjected Petitioner to discriminatory hiring practices on the basis of the race and age of Petitioner. While not identifying specific positions, the Petition for Relief contains the allegation that Petitioner applied for 244 positions within the hiring jurisdiction of Respondent. By order dated January 18, 2000, Administrative Law Judge Donald R. Alexander limited the final hearing to allegations pertaining to Petitioner's application for position number 02925, Research Associate, within Respondent's Division of Workers' Compensation. Respondent denies Petitioner's allegation of discriminatory hiring practice and contends that it hired the most qualified employee. While not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). Petitioner is currently the supervisor of science laboratories for Daytona Beach Junior College. Respondent, in the fashion of most state agencies, periodically issues a "Job Opportunity Announcement" which describes career service positions currently available in the agency. Such an announcement was issued on January 15, 1997, for position number 002925 and read as follows: 3122 Research Associate Notes: Open Competitive. Two years of Social Science or public policy research involving Production or reports: Use of PC in Two of the following four areas: word-processing, spreadsheet, statistical analysis or graphic applications preferred. Min. Qual: A bachelor's Degree from an accredited college or university and three years of professional experience in statistics, research, analysis or program evaluation. A Master's Degree from an accredited college or university can substitute for one year of the required experience. The "Vacancy Notification/Action Form" submitted in support of the Job Opportunity Announcement, dated December 17, 1996, contains the following statement: Preferred Qualifications: At least 2 years of social science or public policy research involving production of reports; use of personal computers in two of the following four areas: word processing, the spreadsheet, statistical analysis or graphic application. A vacancy announcement published in the "Tallahassee Democrat" on January 19, 1997, contains the same statement of preferred qualifications. The preferences are consistent with the official job description for position 02925 as contained in Class Code 3122 for the class title of research associate. The class specifications also include the caveat that "additional knowledge, skills and abilities may be applicable for individual positions in the employing agency." Within Respondent's structure, Ken Baugh supervised position number 02925 and was responsible for the hiring process, inclusive of the placement of the job announcement and the vacancy advertisement. Baugh based the stated job specifications upon the Career Service Class Specifications, as well as his knowledge of the requirements to perform successfully in the position. Prior to advertising the position, Baugh developed a selection package which included a work sample test, a job description, a list of knowledge, skills and abilities, a screening criteria, application review process, and interview questionnaire. Baugh submitted the package to the Office of Civil Rights and Minority Affairs within Respondent's structure where it was approved. Such approval indicates that the package reflected a process to measure core job duties. Respondent received 115 applications for position 02925. Five applicants were interviewed for the position. All met the minimum qualifications for the position. Gary Sabitsch, a white male born on September 24, 1965, was the successful candidate. Sabitsch has a bachelor's degree and has been employed for four years by a private entity as a research associate. He performed tasks in his research associate position inclusive of governmental consulting, as well as collection and analysis of data. Sabitsch's qualifications also include experience in word processing, spreadsheets, and graphics. His computer software usage and experience also are more extensive than that of Petitioner, in Baugh's estimation. The experience of Sabitsch in the public policy or social science arena more appropriately met Braugh's expectations for the successful candidate than the experience of Petitioner which was limited to the natural science area. In his evaluation and interviews, and subsequent selection of Sabitsch, Baugh used the interview package previously approved by the Office of Civil Rights. Baugh had no previous knowledge of Sabitsch prior to the interview. Applications provided to Baugh did not have the EEOC survey portion, which permits an applicant to voluntarily reveal age and race. These portions of the applications had been previously removed prior to Baugh's perusal. Baugh's selection of Sabitsch was approved by Respondent's Office of Civil Rights. Petitioner presented no evidence that the selection process was varied so as to discriminate on the basis of age or race. Further, he presented no evidence that he met the preferred criteria noticed for the position. In summary, there is no credible evidence that Respondent's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decision at issue in this proceeding was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated Respondent's actions.
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, with prejudice, the Petition for Relief. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 8th day of June, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sonja P. Mathews, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2199
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Business of Respondent The complaint alleges the Respondent admits and I find that the Respondent is a public employer within the meaning of Section 447.203, Florida Statutes. The Labor Organization Involved The Respondent disputes the complaint allegation that the Charging Party is an employee organization with the meaning of Section 447.203(10) of the Act. Evidence adduced during the course of the hearing establishes that the Charging Party is an organizational faculty at Brevard Community College which desires the betterment of teaching conditions at the college. It seeks to represent public employees for purposes of collective bargaining and in other matters relating to their employment relationship with the college. The Charging Party is registered with PERC and has petitioned PERC to determine its status as a bargaining representative. Testimony also indicates that employees are permitted to participate in the organizational affairs and a representation election was held on March 3, 1976, which Involved the Charging Party. Based on this undisputed testimony, I find that the Charging Party is an employee organization within the meaning of Section 447.203(10) of the Act. The Alleged Unfair Labor Practices Background Patrick D. Smith, is employed by Respondent as Director of College Relations and he also serves as the editor of a college communications organ called the Intercom. Smith's immediate superior is Dr. King, the College's President who has the final authority for determining the Intercom's content. The Intercom is distributed to faculty and staff members in their college mailboxes and is published weekly during the school year. The Intercom is printed in and distributed from Smith's office on campus. On January 21, 1976, Lewis Cresse (then the Charging Party's President and a BCC faculty member) called Smith at his office and advised that he (Cresse) would like to announce a meeting that the Charging Party would be having in the Intercom. Approximately one week later, Cresse met President King in the college's parking lot and specifically asked that the BCCFT (the Charging Party) be allowed to use the Intercom. King indicated that he had no intention of allowing the Charging Party to use the Intercom and it suffices to say that Smith denied Cresse the use of it for announcing a meeting that the Charging Party would soon be holding in the Intercom. It is by these acts, that the General Counsel issued his complaint alleging that the Respondent discriminatorily denied the Charging Party the use of the Intercom and the college bulletin boards as a means of communicating the Charging Party's announcements and meetings. In attempting to establish that the above acts constitute violations of Sections 447.501 and 447.301 of the Act, the General Counsel introduced testimony to the effect that the Brevard Vocational Association, an organization whose purpose is to maintain communications for the benefit of all vocational, industrial education instructors in Brevard County had been permitted useage of the Intercom. Evidence also established that individuals were allowed to advertise personal items which they desired to sell in the Intercom and that such useage included advertisements regarding rummage and garage sales and that the Brevard Chapter of Common Cause, an organization which seeks to improve the workings of government by making it more accountable to the citizenry had frequently utilized the college's bulletin system. The Respondent bases its defense on its position that including in the Intercom, a meeting notice for the Charging Party which not only gave the time and place of the meeting but also urged faculty members to attend would have possibly violated the Act, by giving illegal assistance to the union; and that in any event, the college was not required to run the employee organization's notice in a publication such as the Intercom. Smith informed Cresse of Respondent's decision not to permit the employee organization to use the Intercom as a communications organ and thereafter, no other requests to use Intercom was made by the employee organization. Based on Smith's undisputed testimony that he raised the issue with Dr. King, college President, whether the employee organization's request would be granted, and that he (King) raised the question with the college's attorney, I find that the Respondent's denial is an act which is properly chargeable to Respondent. In support of its position that the Respondent discriminatorily denied the Charging Party to utilize the Intercom, the General Counsel introduced the February 19, 1976 issue of Intercom which contained a statement to the effect that Lewis Cresse, a professor at the college, would be speaker at a monthly meeting of the Brevard Vocational Association. Another item included in the Intercom was a meeting notice for the American Welding Society wherein it was announced that Sam Reed was Granted permission to announce a meeting for the society. In both examples, it was noted that the Brevard Vocational Association and the American Welding Society are organizations which the Respondent's administration encouraged faculty and staff members to participate in and for which the college reimbursed employees for expenses resulting from out-of-town meetings. Respondent's position is that it works closely with the society in that it fulfills its educational mission by preparing instructors which ultimately fulfills the college's mission. The remaining complaint allegations concerns the issue of a discriminatory denial to the employee organization of access to the college's bulletin Boards. Evidence reveals that the college has a well established procedure for the approval of documents to be posted on the college's bulletin boards and that such procedures are enforced. Prior to posting, they must be approved by Mike Merchant, Manager of the Student's Center and that approval takes the form of either a rubber stamp which indicates approval which is thereafter initialed by Mr. Merchant, or he writes the work "approved" on the document with his initials and the date. The facts relative to this allegation stems from a request by the Charging Party to post campaign materials on bulletin boards throughout the campus. Dr. Kosiba, provost of the Cocoa Campus informed Mr. Merchant that this request should be denied and it was. This request was also denied based on Respondent's position that it was not obliged to honor union requests to post union meeting notices on its bulletin boards and further that the items requested were "promotional materials" which were in truth "highly controversial campaign literature intended to gain support for the union in the then upcoming election." The items introduced were (1) a bumper sticker which encouraged employees to vote for the union and (2) a red, white and blue document covered with banner, stars and an eagle entitled "working draft of proposed agreement." To sustain the complaint allegations, it must be shown that (1) the Charging Party made a request to use the Respondent's communication facilities which in this case involved the Intercom and its bulletin boards and a denial of such request, (2) that similar requests had been approved of a similar nature and (3) that other alternative means of access were not available to the Charging Party. As to the first point, there is no question but that the Charging Party requested and was denied permission to use the Respondent's bulletin boards and its communications organ, the Intercom. However, the record evidence fails to establish that the Respondent had honored similar requests by other organizations in the past. In fact, all of the evidence tends to establish that with respect to the items here in dispute, Respondent vigorously opposed unionization, as was its right, and to have permitted the Charging Party to use the bulletin boards and its communications organ here would have been tantamount to a passive approval of the very ideas to which it had vigorously objected to. Furthermore, records evidence established that the union had abundant opportunity and did in fact communicate extensively with the employees. Among these other alternative means were: The college permitted the Charging Party to hold campus wide meetings for the faculty and staff on campus during daylight hours. The college provided a bulk distribution table conveniently located near the post office which was regularly visited by faculty and staff members. The college had an established policy which would have permitted the Charging Party to designate a single bulletin board for the posting of announcements. The employee organization was able to communicate extensively with faculty and staff by the circulation of numerous documents that were delivered to staff offices. (See Public Employer's Exhibits #3 - #24). Via the "faculty and staff directory", the employee organization had access to all names, home addresses and phone numbers of all members of the bargaining unit. (See Public Employer's Exhibit #26). The employee organization had available the campus newspaper THE CAPSULE, for meeting notices, announcements, etc. Local newspapers disseminated in the Brevard County area reported extensively on the union's campaign and activities. (See Public Employer's Exhibit #24(a) through (t)). Based thereon, I find that the Charging Party had numerous alternative means to communicate with the employees and the record is void of any circumstantial evidence that the rights of employees were interfered with, restrained or otherwise coerced by the Respondent's conduct as set forth above. I shall therefore recommend that the complaint filed herein be dismissed in its entirety.
The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2018.
The Issue Whether Respondent is guilty of unlawful employment practices; to wit: disparate treatment due to Petitioner's race (Hispanic) and/or retaliation.
Findings Of Fact Petitioner is an Hispanic female. At all times material, Petitioner was employed as a Registered Nurse, Nursing Supervisor, by Respondent. Respondent is a rehabilitative nursing facility in Gainesville, Florida, which qualifies as an "employer" under Chapter 760, Florida Statutes. Since the situations complained-of by Petitioner occurred, Petitioner has continued to be employed by Respondent with no breaks in service, no decreases in pay, no change in benefits, and no demotions in rank. At all times material, Respondent has employed Caucasians, Hispanics, African-Americans, and persons of Indian sub-continent descent. Petitioner signed on March 23, 2007, and on April 5, 2007, filed a Charge of Discrimination with FCHR. The Charge alleged that the Employer Respondent had perpetrated an unlawful employment practice upon Petitioner due to her race (Hispanic) and in retaliation. On July 25, 2007, FCHR entered and served a Determination: No Cause. On August 27, 2007, Petitioner timely filed a Petition for Relief. However, her Petition for Relief only alleged discrimination on the basis of retaliation. The retaliation named was that "my evaluation would be done in a group because of a meeting with Mr. Hamilton and Mr. Hawkins." There are no references whatsoever to race or national origin within the Petition for Relief. The Petition does not specifically allege pattern, or on-going discrimination. It does not specifically allege harassment or hostile work place. It suggests only that Petitioner feels that she does not get respect and is "attacked without evidence." Via her Petition, Petitioner seeks the remedy of ". . . that they [the employer] pay for all my therapies and medication and pay for the meetings I attended.” Early on September 5, 2006, Petitioner was standing in line to punch-in on her timecard at Respondent’s facility. Barbara Washington, an African-American CNA, was standing directly behind her. Petitioner shielded her social security number from Ms. Washington’s gaze. Later the same day, Petitioner was rolling a medicine cart down the hallway in Unit Two of Respondent's facility. Ms. Washington was taking a dinner break, seated in a position near the nursing station, which permitted her to view the patients assigned to her. Unfortunately, Ms. Washington's position did not permit Petitioner and the medicine cart to pass. Petitioner requested that Ms. Washington move, so as to let Petitioner and the medicine cart pass. Ms. Washington spoke sharply to Petitioner, either because Petitioner asked her to get out of the way of the medicine cart or for reasons of Ms. Washington's own related to the morning punch-in. During a later investigation by Director of Nursing (DON) Lisa Woods Streer, several versions of what Ms. Washington actually said were elicited. However, the best and most credible evidence on this particular point is Petitioner’s testimony that Ms. Washington loudly used profanity (“the F word”) directly to Petitioner. There is, however, no evidence that, whatever the exchange entailed, any patient was disturbed, upset, or even aware of the exchange, and there is no evidence that the statements from Ms. Washington had anything to do with Petitioner’s Hispanic origin or any type of employer “retaliation.” At least three hours later on September 5, 2006, after Ms. Washington had gone off-shift and was standing outside the facility waiting for a ride home, Petitioner handed Ms. Washington a disciplinary form, known as “a counseling slip.” At that point, Ms. Washington refused to sign the counseling slip and, screaming loudly, denunciated Petitioner with additional profanity similar to her earlier verbal abuse. This language was overheard by Yadira Chavala, who was inside the building making out reports. Ms. Chavala stood up and looked out the window so as to determine who was yelling the profanity. Ms. Chavala considered the volume and content of Ms. Washington's comments to be unprofessional and unacceptable, but she did not take it upon herself to report the incident to the DON, who was not present in the facility at that time of the evening. Again, there is no evidence that Ms. Washington was attacking Petitioner’s ethnicity or acting on behalf of the employer in her screams at Petitioner. Petitioner, however, reported to the DON both incidents of loud profanity and insubordination from Ms. Washington towards Petitioner, via a copy of the counseling slip she had given to Ms. Washington and a note slipped under the DON’s door. DON Lisa Woods Streer, found these items when she came on duty the next morning, September 6, 2006. Pursuant to Respondent’s protocol, Ms. Streer asked Unit Director Karen Derrico to take written statements from staff, concerning the med-cart incident which had occasioned the counseling slip from Petitioner. The general tone of the feedback that Ms. Derrico got was that everyone in the facility had heard about the medicine cart incident, but there were no clear and reliable eye witnesses. Ms. Washington did not immediately own-up to her conduct and told DON Streer that Petitioner had made Ms. Washington feel like a thief by covering Petitioner’s social security number when they punched-in together the morning of September 5, 2006. The DON viewed this comment by Ms. Washington as a counter-accusation of some kind (possibly a complaint of discrimination) against Petitioner, and so the investigation continued. At some point, Ms. Chavala came forward to describe what she had heard from inside the building when Ms. Washington was cursing in the patio/parking area. Petitioner did not like the taking of statements and considered the process to be an attack on herself. She also did not like the fact that she was called in for a meeting on September 13, 2006, but was informed after she had arrived that the meeting had been put off to the next day. By September 13, 2006, the decision to discipline Ms. Washington had been made, because by that time Ms. Chavala had come forward concerning the second incident, but because the DON felt that Petitioner “had backed Ms. Washington into a corner” Petitioner required some counseling. Upset that a meeting was to take place the next day, Petitioner telephoned Mr. McKalvane of Respondent’s Human Resources Department in Pensacola, to complain about how the September 5, 2006, situation was being handled. Petitioner testified, without corroboration, that Mr. McKalvane told her that he could not talk to her before the next day’s meeting, but would attend the meeting by speaker phone. On Thursday, September 14, 2006, a two-hour meeting was held at the facility. DON Streer; Administrator George C. Hamilton; Unit Director Derrico; Ruthie Moore, the facility’s Staff Development Coordinator; and Petitioner were present. Streer, Hamilton, and Derrico are Caucasians. Moore is African- American. Mr. McKalvane's race/national origin is not of record, but he did not appear at the meeting, even by telephone. Petitioner felt betrayed because Mr. McKalvane did not attend the September 14, 2006, meeting by telephone. At the September 14, 2006, meeting, Ms. Moore suggested that if Petitioner had known that Ms. Washington was upset, it might have been wise for Petitioner to wait until the next day to hand Ms. Washington her counseling slip. Petitioner was offended by this comment because she believed her delay of three hours after the medicine cart incident before issuing the counseling slip had been sufficient. At the September 14, 2006, meeting, DON Streer suggested that Petitioner might want to get with Ms. Moore for some in-service instruction on how to be a better supervisor. Petitioner was offended by this suggestion, because Petitioner perceived no fault in her handling of Ms. Washington. At no time has Petitioner ever been required by the employer to take supervisory in-service training as a result of the September 5-14, 2006, events. In fact, Petitioner has not taken such training or any similar one-on-one training or in- servicing with the employer, and she has not been penalized for not doing so. As a result of Petitioner’s counseling slip concerning the September 5, 2006, incidents with Ms. Washington, Ms. Washington was suspended from work for one day without pay, but Petitioner was not disciplined in any way concerning Ms. Washington’s accusations. Petitioner suffered no discipline or loss in pay, position, or benefits as a result of the September 5, 2006, or September 14, 2006, events. Petitioner submitted that the employer’s punishment of Ms. Washington was somehow discriminatory against Petitioner because it took management nine days to come to the one-day suspension of the person that Petitioner wanted to be disciplined. However, the only comparator that Petitioner was able to offer was a situation which occurred a year later, in 2007. On that occasion, an oral confrontation occurred between an African-American female worker and a Caucasian female supervisor. There is no specific evidence concerning how similar the 2007 incident was to any of the September 5, 2007, incidents involving Ms. Washington and Petitioner. However, in the 2007 incident, the African-American female immediately admitted wrong-doing, and the very next day, the employer suspended her for one day without pay, just as the employer had suspended Ms. Washington for one day without pay in 2006, in response to Petitioner's counseling slip. Ms. Streer testified credibly that in 2007, the investigation and counseling period was shortened by the subordinate’s immediate admission of wrong-doing and lack of accusations against her reporting supervisor. Approximately September 20, 2006, Petitioner sent a 19- page, typewritten letter of complaint to Respondent’s corporate headquarters. The scope of this letter is not clear because it is not in evidence. Petitioner was supposed to be evaluated annually each September, but she did not receive her evaluation in September 2006. She reminded the DON in November 2006, that she had not yet been evaluated. Shortly thereafter, Petitioner received her annual evaluation which bears a date of October 5, 2006, signed on October 22, 2006, by Weekend Nursing Supervisor Sneha Rema, R.N. Supervisor, and signed-off on by DON Sterer on October 31, 2006.1/ Ms. Rema received no input for her 2006 evaluation from the DON or Administrator. By observation, Ms. Rema appears to be a member of one of the ethnic groups originating on the Indian sub-continent. She rated Petitioner as "exceptional" in categories "work quality," "work quantity/productivity," and "compliance & adherence to policies," and as "meets expectations" in categories "core values" and "leadership skills." Under the 2006, evaluation's heading, "Areas of Improvement, Developmental and/or Upcoming Objectives," Ms. Rema put this comment about Petitioner: May improve her leadership skills by attending seminars on interpersonal relationship and how to influence others to accomplish goals in constructive way and team building from a constructive point-of- view. Ms. Rema approaches evaluations with the belief that each employee has different levels of education and skills, should be encouraged to constantly improve, and can best improve if supervisors point out to the employee performance areas susceptible of improvement by the employee. This viewpoint was Ms. Rema’s sole motivation in making the foregoing comment. Ms. Rema views these types of comments as a way of pointing out goals, not failures. Contrariwise, Petitioner holds the personal belief that unless every single nurse received identical language on the foregoing part of his or her respective annual evaluation, regardless of that employee’s individual circumstances and regardless of who wrote the evaluation, then Petitioner has suffered a personal attack and discriminatory treatment by the employer. There is no evidence that the 2006, evaluation caused Petitioner any loss of pay, position, benefits, or hours. In fact, she received a raise. If the raise was delayed by one month, that information does not appear in the record. At some point between September 20, 2006, which was the date of Petitioner’s letter, and the end of November 2006, (the exact date is not of record), Mr. Ken Hawkins, a consultant of Respondent’s corporate personnel office in Tampa, journeyed to the facility and met with Petitioner to try to resolve her concerns. Mr. Hawkins race/national origin is not of record. The meeting was more acrimonious than harmonious and ended with Mr. Hawkins advising Petitioner that her concerns “were history” and he was not going to go over everything that had already been addressed. Petitioner was offended by Mr. Hawkins’ description of the events that concerned her as “history”; because she felt he yelled at her; and because she felt he had made her come to the facility for a live meeting when he could have just told her “no” over the phone. The two-hour September 14, 2006, counseling meeting and the brief meeting sometime after September 20, 2006, during which Mr. Hawkins told Petitioner he was not going to go over her concerns again are the meetings for which Petitioner feels Respondent employer should pay her. Sometime after her meeting with Mr. Hawkins, Petitioner filed a discrimination complaint with the City of Gainesville Office of Equal Opportunity. The date of this complaint is uncertain. However, it had to precede March 9, 2007, because on that date, in response to the city action, and in accord with Respondent’s Human Resources Office’s instructions, Administrator Hamilton wrote Petitioner and provided her with the Respondent’s 1-800 telephone number to report discrimination. Respondent has an anti-discrimination policy and also posts the 1-800 number in its facilities. Petitioner also filed an EEOC discrimination complaint, and the underlying discrimination complaint herein was filed with FCHR on April 5, 2007. Because her FCHR complaint was signed on March 23, 2007, the undersigned takes it that the EEOC complaint was filed at approximately that time. Petitioner has complained that, as a result of her September 20, 2006, letter to corporate headquarters, she was told, either by Ms. Streer or by Mr. Hawkins that she must be evaluated “in a group.” Her testimony on this issue as to who told her this vacillated, and the group rating was not confirmed by any other witness nor by the signatures on the 2006 and 2007 evaluations in evidence. Although Ms. Streer signs-off as the next level of management on evaluations, that action hardly constitutes "group rating." The evidence as a whole provides the overall sense that Petitioner has been, in the vernacular, “prickly” about what she perceives as situations of disparate treatment, none of which were supported by credible evidence in the instant case, and that as a result of Petitioner’s heightened sensitivity, none of Petitioner's on-site superiors want to expose themselves to old or new accusations by her, but the greater weight of the credible evidence is that in 2007, Theresa Volk, Unit Manager of Station One, supervised Petitioner for only two days per week, so Ms. Volk believed that Petitioner's supervisor for the remainder of the week should have input to Petitioner's 2007 evaluation. Ms. Volk’s name and that of Ms. Rema appear on the first page of Petitioner’s 2007 evaluation, but only Ms. Volk signed as her “evaluator” on October 9, 2007. In that 2007, evaluation, Ms. Volk rated Petitioner “exceptional” in “work quality” and “work quantity/productivity,” and “meets expectations" in “customer service,” “compliance & adherence to policies,” “core values,” and “leadership skills.” Under “areas for improvement,” she made a comment about wound care documentation intended for Petitioner’s improvement. After receiving her September 2007, evaluation, which had been signed by Ms. Volk on October 9, 2007, Petitioner suffered no loss in pay, position, or benefits, and, once again, received her annual raise. Petitioner testified that she got her 2007 raise “late” but did not quantify how late. Petitioner wrote Ms. Volk a letter treating Ms. Volk’s evaluation comment for improvement as a criticism related to a particular past incident, and was offended when Ms. Volk refused to stop the work she was doing to read Petitioner’s letter. Respondent has a policy which requires employees to request personal paid time-off 30 days in advance. Petitioner testified that under this system, she properly requested time off for October 20, 2007, and November 3, 2007, but that shortly before those dates, Ms. Streer told her she could have only one date or the other, but if Petitioner wanted to take off both days, Petitioner had to get a replacement for one day. While this much of Petitioner’s testimony is unrefuted, Petitioner was not persuasive that she ever got written approval of the dates, and she did not establish any connection between the denial of two days' leave and either her Hispanic heritage or as retaliation for her prior letter to corporate headquarters or as retaliation for any of her discrimination complaints in March or April 2007. Petitioner presented no evidence that she lost pay, position, promotion or benefits at any time, on the basis of retaliation or her Hispanic heritage. Petitioner testified that she had to go into therapy and pay for medications as a result of the stress that the foregoing incidents have caused her. She presented no corroborative medical testimony or evidence of any professional diagnosis and further presented no medical or pharmaceutical bills to establish any damages therefor.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2007.
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007)1/, by terminating Petitioner's employment in retaliation for her filing a formal grievance asserting that a co-worker made a racially discriminatory comment to her at a staff meeting.
Findings Of Fact The District Board of Trustees of LCCC is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by the College and began work on January 29, 2007. She worked in the cosmetology department as a Teaching Assistant II until the College terminated her employment on June 28, 2007. In addition to Petitioner, the College's cosmetology department consisted of two instructors, Carol McLean and Vicki Glenn. Ms. McLean was also the department coordinator, meaning that she supervised Petitioner and Ms. Glenn. The instructors performed classroom instruction and supervised students "on the floor" in the department's laboratory, where the students practiced their skills on clients who made appointments with the department to have their hair styled. Petitioner's duties included answering the telephone, making client appointments, ordering and stocking cosmetology supplies, and recording the hours and services performed by the students. Petitioner was a licensed cosmetologist and was expected to assist on the floor of the lab, but only when an instructor determined that her presence was necessary. Petitioner was not authorized to perform classroom instruction. Petitioner was at all times employed on a probationary basis under LCCC Policy and Procedure 6Hx12:8-04, which provides that all newly hired career service employees must serve a probationary period of six calendar months. This Policy and Procedure also requires that conferences be held with the employee at the end of two and four months of employment. The conferences are to include written performance appraisals and should be directed at employee development, areas of weakness or strength, and any additional training required to improve performance. Petitioner acknowledged that she attended orientation sessions for new employees during which this Policy and Procedure was discussed.4/ The evidence at hearing established that the orientation sessions covered, among other subjects, an explanation of the probationary period, the College's discipline and grievance procedures, and how to find the College's Policies and Procedures on the internet. The employee orientation process also required Petitioner's immediate supervisor, Carol McLean, to explain 14 additional items, including Petitioner's job description and the College's parking policies. The evidence established that Ms. McLean covered these items with Petitioner. Petitioner's first written evaluation covered the period from January 29, 2007 through March 29, 2007. The evaluation was completed by Ms. McLean on April 13, 2007, and approved by the Dean of Occupational Programs, Tracy Hickman, on April 30, 2007. The College's "Support Staff Job Performance Evaluation" form provides numerical grades in the categories of work knowledge, work quality, work quantity and meeting deadlines, dependability, co-operation, judgment in carrying out assignments, public relations, and overall performance. A score of 1 or 2 in any category is deemed "unsatisfactory." A score of 3 or 4 is "below norm." A score of 5 or 6 is "expected norm." A score of 7 or 8 is "above norm." A score of 9 or 10 is rated "exceptional." Petitioner's scores in each area were either 5 or 6, within the "expected norm." Ms. McLean graded Petitioner's overall performance as a 6. The evaluation form also provides questions that allow the supervisor to evaluate the employee's performance in a narrative format. In response to a question regarding Petitioner's strengths, Ms. McLean wrote that Petitioner "has demonstrated she is very capable handling conflicts/situations concerning clients. She is also good working with the students when needed. Her computer skills/knowledge has been an asset." In response to a question regarding Petitioner's weaknesses, Ms. McLean wrote, "Kay5/ needs to be a little more organized. I feel confident with the move to the new building, she will be able to set her office up to be more efficient for herself." Petitioner testified that she has excellent organizational skills and that she is, in fact, a "neat freak." Her problem was the utter disorganization of the cosmetology department at the time she started her job. She could not see her desk for the pile of papers and other materials on it. Boxes were piled in the middle of the floor. There were more than 100 unanswered messages in the recorded message queue. Petitioner testified that neither Ms. McLean nor Ms. Glenn could tell her how to proceed on any of these matters, and that she was therefore required to obtain advice via telephone calls to either Wendy Saunders, the previous teaching assistant, or Jeanette West, secretary to the Dean of Occupational Programs. Neither Ms. McLean nor Ms. Glenn recalled the complete departmental disorganization attested to by Petitioner at the outset of her employment. In fact, Ms. McLean recalled having to work 80-hour weeks to restore order to the department's workspace after Petitioner was discharged. No other witness testified as to disorganization prior to Petitioner's hiring. The evidence presented at the hearing established that Petitioner dramatically overstated the poor condition of the cosmetology department's offices at the time she started work, and also greatly overstated any contribution she made to improve its organization. Petitioner's second and final evaluation covered the period from March 29, 2007, through May 29, 2007. The evaluation was completed by Ms. McLean on May 22, 2007, and approved by Dean Hickman on May 23, 2007. Petitioner's numerical scores in each of the categories, including overall performance, was 4, meaning that her performance was "below norm." In a typewritten attachment, Ms. McLean wrote: Employee Improvement: Strengths: Kay is very good with the students and has strong desires to help them. Weaknesses: A concern is Kay's words and actions have shown that she would rather teach than be in the office. There is still a lack of organization in the office. We have had a couple incidents where we have to search for invoices, etc. I am still receiving complaints about the phone not being answered. Other comments: Too often Kay's actions have made it difficult for the department to operate effectively. Since Kay's arrival, it have discussed [sic] that each person must respect the protocol of communicating within the chain of command. On numerous occasions Kay ignored those instructions, In spite of my direct instructions to notify/discuss an incident report to Dean Hickman before doing anything else with it, Kay distributed it to others.6/ The College terminated Petitioner's employment on June 28, 2007, roughly five months after she began work and well within the six-month probationary period. Petitioner's dismissal was due to inadequate job performance and to several episodes displaying poor judgment and disregard of the College's rules and regulations. As to day-to-day job performance, the evidence established that Petitioner often had to be asked several times to do things that she conceded were within the scope of her duties. One of Petitioner's duties was to track the department's inventory, order supplies as needed, check the supplies against the invoices as they arrived, and unpack the supplies and restock the department's shelves. If the supplies were not removed from their shipping containers and stocked on the shelves, it was difficult for the instructors and students to find items or know when the department was running low on a given supply. Student cosmetologists at the College were frequently required to use caustic chemicals, and it was critical that the supplies be correctly inventoried and shelved to avoid mistakes in application of these chemicals. Ms. McLean had to tell Petitioner repeatedly to unpack the supplies. Petitioner would tell Ms. McLean that she would take care of it, but later Ms. McLean would notice that the supplies were still in their boxes.7/ Ms. McLean testified that there were multiple occasions when paperwork could not be located due to Petitioner's lack of a filing system. Ms. McLean and Petitioner would have to rummage through stacks of paper to find the item they needed because Petitioner failed to file the department's paperwork in a coherent manner. Another of Petitioner's duties was to set up "product knowledge" classes conducted by vendors of hair care products used in the cosmetology program. In February 2007, Ms. Glenn asked Petitioner to set up a class with Shirley Detrieville, the Redken representative for the College. Over the next month, Ms. Glenn repeatedly asked Petitioner about her progress in setting up the class, and Petitioner consistently responded that Ms. Detrieville had not returned her calls. Finally, in March, Ms. Glenn happened to see Ms. Detrieville on the campus. Ms. Detrieville informed Ms. Glenn that all the paperwork for the class had been completed long ago, and she was just waiting for Petitioner to call and let her know when to come. Ms. Glenn's class never received the Redken training. The evidence established that Petitioner consistently failed to return phone calls made to the department. There was a core group of women, mostly retirees that constituted an important segment of the regular patrons at the department's lab. Keeping track of their appointments was important because the students needed practical experience in order to meet the requirements for licensure. It was also important to keep track of the training needs of each student, because a student working on hair coloring, for instance, needed to be matched with a customer requesting that service. Among Petitioner's duties was to make the appointments for the patrons, and to coordinate the appointments with the students. Ms. McLean and Ms. Glenn testified that they consistently received complaints that Petitioner did not return phone calls from patrons attempting to make appointments. Ms. McLean recalled an elderly woman named Ms. Grammith, who was a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at home because she was unable to get Petitioner to return her calls for an appointment.8/ Ms. Glenn recounted an occasion when she received a phone call from Ms. Grammith, complaining that Petitioner was not returning her calls. Ms. Glenn walked into Petitioner's office and asked her to return Ms. Grammith's call and make her appointment. Petitioner assured Ms. Glenn that she would. Ms. Glenn then went to teach a class. When she returned to her office, Ms. Glenn had another message from Ms. Grammith. Ms. Glenn asked Petitioner about the situation, and Petitioner admitted that she had not yet returned the call. Still later on the same afternoon, Ms. Glenn received a third call from Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who again admitted that she had not phoned Ms. Grammith. The next morning was a Friday, and Ms. Glenn received another call from Ms. Grammith. Ms. Glenn walked into Petitioner's office and told her to call Ms. Grammith. Ms. Glenn knew Petitioner never made the call because Ms. Grammith called Ms. Glenn yet again on the following Monday. Another elderly regular customer, Ms. Caldwell, stopped Ms. Glenn in the hallway one day to ask "what in the world was going on here." Ms. Caldwell complained that Petitioner never got her appointment right, and always told her that she had come in on the wrong day or at the wrong time. On this day, Ms. Caldwell was left sitting in the hallway outside the lab for three and one-half hours because Petitioner failed to schedule her appointment correctly. On another occasion, Shirley Rehberg, an LCCC employee, emailed Ms. Glenn to inquire about making an appointment for a pedicure. Ms. Glenn responded that Petitioner handled appointments, and provided Ms. Rehberg with information as to Petitioner's office hours. On three different occasions, Ms. Rehberg informed Ms. Glenn that she had attempted to make appointments with Petitioner but had received no response. Ms. Glenn also recalled going to the College registrar's office on unrelated business and being asked by Debbie Osborne, an employee in that office, whether the cosmetology department had stopped taking appointments. Ms. Glenn told her that all she had to do was call Petitioner. Ms. Osborne replied that she had emailed Petitioner several times and never received a response. Ms. McLean concluded that Petitioner was much more interested in the occasional teaching aspect of her position than she was in the quotidian matters of filing, ordering and answering the phone that constituted the bulk of her job. Ms. McLean believed that Petitioner's eagerness to teach, even when her presence on the floor was not requested or needed, sometimes caused Petitioner to neglect her other duties. Petitioner admitted that she preferred teaching, but also testified that she was forced to teach students at least two days per week because Ms. McLean simply skipped work every Wednesday and Thursday. Petitioner stated that when she was on the floor of the lab, she could not hear the phone ringing back in the office. She believed that this might have accounted for some of the missed phone calls. Ms. McLean credibly denied Petitioner's unsupported allegation that she skipped work twice per week. Ms. McLean was in the classroom and lab with her students four days per week, as required by her schedule. Ms. McLean reasonably observed that she would not remain long in the College's employ if she were to skip work every Wednesday and Thursday. When classes were not in session, faculty members such as Ms. McLean and Ms. Glenn were not required to come into the office, whereas the teaching assistant was required to come in and work a full day from 8:00 a.m. to 5:00 p.m. On these faculty off-days, it was especially important for Petitioner to be on the job because she constituted the sole point of contact between students and the cosmetology department. New classes in cosmetology start twice a year, and prospective students may drop by the campus at any time. If no one is present during normal working hours to answer questions or assist the student in applying, the College could lose a prospective student as well as suffer a diminished public image. The evidence established that Petitioner would take advantage of the lack of supervision on faculty off-days to go missing from her position, without submitting leave forms for approval by an administrator as required by College policy. May 4, 2007, was the College's graduation day. Ms. McLean and Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to prepare for the cap and gown ceremony and noted that Petitioner was not there, though it was a regular work day for her. Petitioner was still absent at 4:30 p.m. when the two instructors left the building to go to the graduation ceremony. On May 15, 2007, a faculty off-day, Ms. Glenn came in at 11:00 a.m. to prepare for her class the next day. Petitioner asked Ms. Glenn to handle a student registration matter while Petitioner went out. Ms. Glenn agreed to do so. The students had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to leave. Petitioner had still not returned to the office, forcing Ms. Glenn to ask Ms. West to register the students if they arrived. Ms. Glenn had no idea when or if Petitioner ever returned to work that day. Marcia Brinson was the custodian who cleaned the cosmetology building. During summer session at the College, Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often come into the cosmetology building and find that Petitioner was not there. This was the case on May 15, 2007, when Ms. Brinson entered the building at 2:00 p.m. At around 2:30, an administrator named Glenn Rice came to the cosmetology building with two students whom he was attempting to enroll.9/ Ms. Brinson phoned Ms. McLean at home to inform her of the situation. Ms. McLean phoned the cosmetology office. Petitioner did not answer. At about 2:50 p.m., Ms. McLean called Petitioner at her cell phone number. Petitioner answered and told Ms. McLean that she was at her mother's house, but was about to return to the College. Ms. McLean could not say whether Petitioner ever actually returned to the College that day. At the hearing, Petitioner claimed that the only time she left the cosmetology department on May 15, 2007, was to go to the library at 2:15 p.m. and obtain materials for a class she was going to teach on May 17. This testimony cannot be credited, given that it conflicts with the credible testimony of Ms. McLean, Ms. Glenn and Ms. Brinson. Further belying Petitioner's claim is the fact that she later submitted a leave form claiming "personal leave" for two hours on May 15, 2007. She claimed the hours from 3:30 p.m. to 5:30 p.m. Aside from its inconsistency with Petitioner's testimony, this claim was inaccurate on two other counts. First, the evidence established that Petitioner was away from the office from at least 11:00 a.m. until some time after 3:00 p.m. Second, Petitioner's regular work day ended at 5:00 p.m., thus giving her no cause to claim leave for the half-hour between 5:00 and 5:30 p.m. The College has a "wellness" program in which employees are allowed to take 30 minutes of leave, three days per week, in order to engage in some form of exercise. Petitioner considered wellness time to be the equivalent of personal leave, and would leave her job at the College early in order to keep an appointment at a hair-styling salon at which she worked part-time. Finally, Petitioner was unwilling or unable to comply with the College's parking decal system. At the time she was hired, Petitioner was issued a staff parking pass that entitled her to park her car in any unreserved space on he campus. As noted above, many of the cosmetology customers were elderly women. For their convenience, the College had five spaces reserved for customers directly in front of the cosmetology building. Customers were issued a 5 x 8 "Cosmetology Customer" card that they would leave on their dashboards. If all five of the reserved spaces were taken, the card allowed the customer to park in any space on the campus. On May 30, 2007, the College's supervisor of safety and security, Tony LaJoie, was patrolling the campus on his golf cart. Petitioner flagged him down, asking for help with a dead battery in her car. Mr. LaJoie stopped to help her, but also noticed that Petitioner's car was parked in a space reserved for customers and that Petitioner had a "Cosmetology Customer" card on her dashboard. When he asked her about it, Petitioner told Mr. LaJoie that she had lost her staff parking pass and therefore needed to use the customer pass. Mr. LaJoie told Petitioner that she could go to the maintenance building and get a new staff pass, or get a visitor's pass to use until she found the first pass. Petitioner told Mr. LaJoie that she could not afford the $10 replacement fee for the pass. Mr. LaJoie told her that the $10 replacement fee was cheaper than the $25 to $50 fines she would have to pay for illegally parking on campus. Petitioner promised Mr. LaJoie that she would go to maintenance and take care of the situation. On June 5, 2007, Mr. LaJoie found Petitioner's car again parked in a customer reserved space and with a customer card on the dashboard. Mr. LaJoie wrote Petitioner a parking ticket. Petitioner was well aware that the customer spaces were reserved at least in part because many of the department's customers were elderly and unable to walk more than a short distance. Petitioner nonetheless ignored College policy and parked her car in the reserved spaces. Petitioner never obtained a replacement parking pass.10/ Dean Hickman was the administrator who made the decision to recommend Petitioner's termination to the College's Vice-President, Charles Carroll, who in turn presented the recommended decision to LCCC President Charles W. Hall, who made the final decision on termination. She based her recommendation on the facts as set forth in Findings of Fact 19 through 48, supra. Petitioner's termination was due to her performance deficiencies. Dean Hickman considered Petitioner's pattern of conduct, including her repeated violation of parking policies and her practice of leaving her post without permission, to constitute insubordination. Ms. McLean, who provided input to Dean Hickman as to Petitioner's performance issues, testified that Petitioner's slack performance worked to the great detriment of a department with only two instructors attempting to deal with 20 or more students at different stages of their training. Petitioner's position was not filled for a year after her dismissal. Ms. McLean and Ms. Glenn worked extra hours and were able to perform Petitioner's duties, with the help of a student to answer the phones. The fact that the instructors were able to perform their own jobs and cover Petitioner's duties negates Petitioner's excuse that she was required to do more than one full-time employee could handle. Furthermore, Ms. McLean testified that, despite the added work load, Petitioner's departure improved the working atmosphere by eliminating the tension caused by Petitioner. Because Petitioner was still a probationary employee, the College was not required to show cause or provide specific reasons for her dismissal. Nevertheless, the evidence established that there were entirely adequate, performance-based reasons that fully justified the College's decision to terminate Petitioner's employment. The evidence further established that Petitioner's dismissal was not related to the formal grievance Petitioner filed on June 5, 2007. However, because Petitioner has alleged that her termination was retaliatory, the facts surrounding her grievance are explored below. The grievance stemmed from an incident that occurred between Petitioner and Ms. Glenn on May 16, 2007, the first day of the summer term. A student named Russia Sebree approached Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's summer class roster because she had not completed the Tests of Adult Basic Education ("TABE"), a test of basic reading, math and language skills. Students were required to pass the TABE in their first semester before they would be allowed to register for their second semester. Ms. Glenn told Ms. Sebree that, because the initial registration period had passed, they would have to walk over to the Dean's office and have Dean Hickman register Ms. Sebree for the class. Ms. Glenn phoned Dean Hickman's secretary, Ms. West, to make an appointment. Ms. West told Ms. Glenn that Dean Hickman was out of the office, and that she would make a return call to Ms. Glenn as soon as the dean returned. While waiting for Ms. West's call, Ms. Sebree apparently drifted into Petitioner's office. She mentioned to Petitioner that she hadn't passed the TABE test, and Petitioner told her she could take care of the matter by making an appointment for Ms. Sebree to take the test. Ms. Glenn overheard the conversation and walked in to stop Petitioner from making the call. She told Petitioner that she had a call in to Dean Hickman, and that she and Ms. Sebree would have to meet with the dean to determine whether Ms. Sebree could register for Ms. Glenn's summer class or whether she would be required to complete the TABE and wait until the next semester. Ms. Glenn was angered by Petitioner's interference in this matter. Petitioner's actions were beyond the scope of a teaching assistant's duties, unless requested by an instructor.11/ She jumped into the situation without inquiring whether Ms. Sebree had talked to her instructor about her problem and without understanding the steps that Ms. Glenn had already taken on Ms. Sebree's behalf. Eventually, Ms. West returned the call and Ms. Glenn and Ms. Sebree met with Dean Hickman. After the meeting, Ms. Glenn requested a private meeting with Dean Hickman. She told the dean that she was very upset that Petitioner had taken it upon herself to take over the situation with Ms. Sebree, when Ms. Glenn was taking care of the matter and Petitioner had no reason to step in. Dean Hickman told Ms. Glenn that she would not tolerate a staff person going over an instructor's head in a matter involving a student. Dean Hickman asked Ms. Glenn to send Petitioner over to her office. Dean Hickman testified that she met with Petitioner for about 30 minutes, and that Petitioner left her office requesting a meeting with Ms. Glenn. Dean Hickman did not testify as to the details of her meeting with Petitioner. The dean knew that Petitioner was angry and cautioned her to conduct herself in a professional manner when speaking with Ms. Glenn. Petitioner testified that Dean Hickman "yelled" at her, "I will not have you undermine my instructor's authority." Petitioner professed not to know what Dean Hickman was talking about. The dean repeated what Ms. Glenn had said to her about the incident with Ms. Sebree. According to Petitioner, Ms. Glenn had told the dean "some lie," an "outlandish" tale in which "I went in telling Russia that she didn't have to do what Vicki said, or something like that." Petitioner told Dean Hickman her version of the incident, which was essentially that nothing happened. She was showing Ms. Sebree "some basic algebraic equations and stuff and there was no conflict or anything in the office." Petitioner asked for a meeting "so I can see what's going on." Petitioner returned to the cosmetology department. She was visibly upset. She asked for a departmental meeting with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed to move up the weekly departmental meeting in order to take care of this matter. The meeting convened with Ms. McLean going over the usual day-to-day matters involving the program. Once the regular business was completed, Ms. McLean stated that she wanted Petitioner and Ms. Glenn to air out their problems. Petitioner asked Ms. Glenn why she wanted to tell lies about her. Ms. Glenn said, "What?" and Petitioner stated, "You're a liar." Ms. Glenn denied the accusation. Petitioner repeated, "You're nothing but a liar." In anger and frustration, Ms. Glenn stated, "Look here, sister, I am not a liar." Petitioner responded, "First, you're not my sister and, secondly, my name is Stephanie K. Taylor, address me with that, please."12/ Ms. McLean testified that both women were "pretty heated" and "pretty frustrated" with each other. She concluded the meeting shortly after this exchange. After the meeting, Petitioner and Ms. McLean spoke about Ms. Glenn's use of the word "sister," which Petitioner believed had racial connotations. Ms. McLean told Petitioner that she did not believe anything racial was intended.13/ Ms. Glenn had never been called a liar, and in her frustration she blurted out "sister" in the same way another angry person might say, "Look here, lady." Petitioner seemed satisfied and the matter was dropped for the remainder of the day. Dean Hickman testified that Petitioner brought some paperwork to her office that afternoon after the departmental meeting. Petitioner told her that she felt better about the situation, that they had aired their differences and everything now seemed fine. The dean considered the matter resolved. By the next morning, May 17, 2007, Petitioner had changed her mind about the comment. She sent an email to each member of the College's board of trustees, President Hall, Dean Hickman, and various other College employees that stated as follows: Hello. I am Stephanie K. Taylor, Teaching Assistant for Cosmetology. I am writing because of an incident that took place on yesterday, May 16, 2007. Nancy Carol McLean (Coordinator/Instructor), Vicki Glenn (Instructor) and I met for a meeting to discuss concerns in our department approximately 11:35 am. During our discussion, Vicki Glenn made a racial comment to me. I disagreed with her concerning a statement she made. Her reply to me was: "No, 'Sister', I did not!" I was very offended by her remark and I replied, "My name is Stephanie Kay Taylor." Following the meeting, I spoke with Ms. McLean and I decided to write this incident statement. If I allow an instructor to call me something other than my name, these incidents will continue. Ms. McLean had repeatedly cautioned Petitioner to respect the College's chain of command. As Petitioner's immediate supervisor, Ms. McLean was supposed to be Petitioner's first resort insofar as work-related complaints. Petitioner was in the habit of going straight to Dean Hickman with complaints before discussing them with Ms. McLean. However, in this instance, Petitioner did show Ms. McLean the text of her statement before she distributed it. Ms. McLean advised Petitioner to take the matter straight to Dean Hickman and discuss it with her before distributing the statement. Petitioner did not take Ms. McLean's advice. Though Petitioner emailed the statement to Dean Hickman, the dean did not actually see the statement until it had been distributed to several other people. No evidence was presented that Petitioner suffered any adverse consequences from distributing her written statement outside the College's chain of command. To the contrary, Petitioner testified that Ms. McLean advised her that if she felt strongly about the matter, she should file a formal grievance pursuant to the LCCC Policy and Procedure 6Hx12:6- 10.14/ Ms. McLean provided Petitioner with the forms she needed to file a written grievance. Petitioner also sought and received the advice of a human relations specialist at the College as to how to file a formal grievance. Both Ms. McLean and Ms. Glenn convincingly testified that they had no ill feeling toward Petitioner for filing a grievance. Ms. McLean stated that the grievance had no impact on her at all. Ms. Glenn was not disturbed by the grievance because she had done nothing wrong and believed the process would vindicate her. Petitioner filed her formal written grievance on June 5, 2007. Vice president Marilyn Hamm began the investigation in the absence of Human Resources Director Gary Boettcher, who picked up the investigation upon his return to the campus. Dean Hickman also participated in the investigation of Petitioner's grievance. They interviewed the witnesses to the incident. They also interviewed 11 cosmetology students and asked them whether they had ever heard Ms. Glenn make any "derogatory or racial slurs or comments" relative to Petitioner. None of the students had heard Ms. Glenn make any remarks fitting the description in the query.15/ One student told the investigators that he had heard Petitioner speak disparagingly of Ms. Glenn, but not vice versa. On June 19, 2007, Mr. Boettcher issued a memorandum to Petitioner that stated as follows: You filed a grievance alleging that Ms. Vickie Glenn made a racial comment to you by calling you "sister." You further stated that you want the same respect that you have given to others and that you be referred to by your name, Stephanie K. Taylor. I was not available when you filed the grievance therefore it was referred to Vice President Hamm who began the investigation and upon my return it was referred to me. Ms. Hamm interviewed yourself, and Carol McLean. Ms. Hamm and I then interviewed Ms. Glenn. Subsequently, Ms. Hickman, the Dean of your department, and I interviewed a random sampling of students in the cosmetology program. The incident you described, when you were referred to as "sister" was discussed with both Ms. McLean and Ms. Glenn, who were in the meeting when the comment was made. They both acknowledged that you were in fact referred to as sister. Neither of them viewed it as a racial comment but a term that was used in the heat of the discussion in which you and Ms. Glenn were very much at odds on a subject. The students were interviewed and asked if you had discussed or made mention of an evaluation that you received and also whether that had ever heard Ms. Glenn talk derogatorily or made any racial comments relative to you. Some of the students heard of talk of your evaluation but none of them heard it first hand from you. None of the students ever heard Ms. Glenn refer to you in any racial or disparaging way. In view of the investigation it is concluded that you were called "sister" but not in a negative or racial inference and that Ms. Glenn has not referred to you in a derogatory or racial manner. This has been discussed with Ms. McLean and Ms. Glenn in that they were asked to refer to you strictly by your name and in a professional manner. I trust this will be satisfactory to you and if you have any questions please feel free to contact me. Petitioner's employment with the College was terminated on June 28, 2007, nine days after Mr. Boettcher's memorandum. No evidence was presented to establish a causal connection between these two events, aside from their temporal proximity. As noted extensively above, the College had more than ample justification to terminate Petitioner's employment before the conclusion of her six-month probationary period. The greater weight of the evidence establishes that Petitioner was terminated from her position with the College due to poor job performance and conduct amounting to insubordination. The greater weight of the evidence establishes that the College did not retaliate against Petitioner for the filing of a grievance alleging that Ms. Glenn had made a racially discriminatory remark towards Petitioner. Rather, the greater weight of the evidence established that College personnel assisted Petitioner in filing her grievance and that the College conscientiously investigated the grievance. The greater weight of the evidence establishes that the College has not discriminated against Petitioner based on her race.
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 Lake City Community College did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, 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 30th day of June, 2010.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, Petitioner, Ausbon Brown, Jr. (Petitioner), who is an African-American male born on April 25, 1943, contends that Respondent, Department of Health (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends instead that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost 21 months to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to Petitioner's job applications received in evidence, as supplemented by testimony at hearing, from June 1965 until April 1994 Petitioner worked for the U. S. Department of Commerce, National Marine Fisheries Service, in various positions, including "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries technician/biologist," and "Equal Employment Opportunity Counselor." Petitioner then retired from federal service. From July 28, 1995, until July 6, 1998, he was employed as a child support enforcement case analyst with the Florida Department of Revenue. Currently, he is employed by Daytona Beach Community College in an undisclosed capacity. In 1996, Petitioner filed a number of job applications with the former Department of Health and Rehabilitative Services (HRS). Shortly after the applications were filed, HRS was abolished and many of its functions were transferred by the Legislature to at least three other agencies, including the Department, the Department of Children and Family Services (DCFS), and the Agency for Health Care Administration. Four positions that followed the Department are in issue here, and they include positions 66224, 29618, 67370, and 80690. Position 29618 has a long and somewhat confusing history and was originally created for the Volusia County Health Department (Health Department) in January 1994. It was first filled in March 1994, but was vacated in June 1996. The position was then transferred to HRS and reclassified as an Operations and Management Consultant II. Even though it was advertised as a "pending" position in November 1996, Petitioner responded to that advertisement and filed a job application with HRS. Since it was a pending position, it was never filled and was "restructured" a month later to a Personnel Services Specialist. After the HRS reorganization became effective in late 1996 or early 1997, position 29618 was transferred to the Department where it was reclassified Personnel Officer I. The Department advertised the position in March or April 1997, and it was filled in April 1997 through a voluntary demotion taken by a DCFS employee whose prior position as a Senior Personnel Manager was lost through the reorganization. That individual was given priority in filling the position since the Legislature mandated that existing employees who lost their jobs through reorganization be given priority in filling other state jobs. Petitioner did not file an application for the position after it was advertised by the Department, and thus no consideration need be given to allegations pertaining to this job. Further, there is no evidence that the position was reclassified or transferred between the agencies on three occasions for the purpose of allowing it to be filled by a DCFS employee rather than by Petitioner. Position 67370 was classified as a data base analyst coordinator and was transferred from DCFS to the Health Department on an undisclosed date. When the job was advertised by the Health Department only five persons applied for the position, including Petitioner and Shirley Wilson (Wilson), the successful applicant whose race and exact age is unknown. Based on her dates of education, however, she is likely to be younger than Petitioner. In addition to the minimum qualifications, the Health Department desired a person with experience in Microsoft applications used by the Department, system security, supervision of employees in the automation field, and the data base itself. Because Wilson had experience in all of the above areas, was currently employed as a data base analyst/coordinator (system administrator) for the DCFS, and was "recognized statewide for her excellence within the CHD system," she received the highest score and was chosen for the position. Conversely, Petitioner could not match Wilson's direct experience in these fields and therefore did not have the qualifications possessed by the successful applicant. The evidence shows that the most qualified person was chosen. Contrary to a suggestion by Petitioner, the competitively-advertised position was not filled through the promotion of an existing employee, which would be contrary to personnel rules, but rather it was filled through the reassignment of another employee (Wilson). Position 80690, an Inspector Specialist, was located within the Department's Office of Inspector General. Over 130 persons filed applications, and score sheets were prepared for each candidate based on the applicant's education, experience in certain prescribed areas, written and verbal communication skills, and computer skills. Petitioner received an overall score of 136, while the successful candidate, Robert D. Cotton (Cotton), a white male three years younger than Petitioner, received 326 points. Although Petitioner received one of the highest point totals for education (84), he received only 21 points for his experience since his investigative experience was in the scientific area rather than in the areas unique to the Office of Inspector General. Thus, Petitioner's contention in his post- hearing filing that he should have been assigned 300 points for professional investigative experience (rather than 21) has not been accepted. In contrast, Cotton had extensive supervisory experience and prior work experience, including four years as the director of the office which processes and investigates licensee complaints for the Department of Business and Professional Regulation. Thus, Cotton was the most qualified person for the job. Petitioner also applied for position 66224, an Environmental Specialist with the Health Department. Forty-three persons filed applications, but only the nine who received more than 40 points were chosen for an interview. Petitioner was not in this group since he received only 26 points, for a ranking of twentieth on the overall list. A three-person evaluation committee initially reviewed the applications and assigned points on the basis of interview selection criteria. The successful applicant, Lawrence Pagel (Pagel), a white male whose exact age is unknown, received 51 points. Based on his dates of education, however, it is likely that Pagel is younger than Petitioner. Before accepting the job, Pagel had served as an Environmental Health Specialist for the Columbia County Health Department, and he had both a bachelor and master's degree in public health. The greater weight of evidence supports a finding that the most qualified person was selected for the job. While the Petition for Relief alleges that the Department "classified positions" and varied "conditions of employment" in an effort not to hire Petitioner, there was no credible evidence to support this claim, or that the Department's actions were a pretext for discrimination. Indeed, there is no evidence from which to even draw an inference that the employment decisions were grounded on discriminatory animus in any respect, or that the Department acted with discriminatory intent when it hired the successful applicants and rejected Petitioner. During cross-examination of Respondent's witnesses and his own rebuttal testimony, Petitioner suggested that employees within an agency have an inherent advantage over outsiders, such as he, since they can more easily obtain the specific job experience required for vacant positions. Even if this is true, however, it does not constitute a discriminatory act on the part of the Department within the meaning of Chapter 760, Florida Statutes. Petitioner also contended that his applications were not properly scored and that he should have been entitled to more points based on his work experience; the more persuasive evidence belies this contention.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief DONE AND ENTERED this 10th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Steven W. Foxwell, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
