The Issue The issue in the case is whether the termination of Petitioner's employment by Respondent constituted discrimination against Petitioner on the basis of gender.
Findings Of Fact Petitioner is a female, a member of a protected group under applicable law, and was at all times material to this case, employed by Respondent until the termination of employment that is the subject of this dispute. Respondent is an employer as the term is defined by relevant sections of the St. Petersburg Municipal Code and the applicable Pinellas County Ordinance. During the period of time relevant to this dispute, Sam Obinwa owned Respondent. During the period of Mr. Obinwa's ownership, Respondent was a business engaged in providing health care supplies, including pharmaceuticals to customers. Beginning in July 1996, Petitioner was employed as a courier by Respondent. Petitioner was primarily assigned to make deliveries of supplies to Respondent's customers. Respondent also employed a second courier, a male, during this period. At some point during Petitioner's employment, Mr. Obinwa hired an office manager, Kim Henderson. Ms. Henderson became Petitioner's supervisor. Ms. Henderson was responsible for the operation of the office, including receiving customer complaints and resolving employee disputes. Mr. Obinwa testified that he received information related to the office operations from Ms. Henderson and relied upon it in making the decision to terminate Petitioner's employment. According to Mr. Obinwa's testimony, he received complaints regarding Petitioner's job performance and behavior from both customers and Ms. Henderson. Mr. Obinwa testified that he discussed the complaints with Petitioner during her employment. On December 14, 2003, Mr. Obinwa met with Petitioner and explained that her employment was being terminated. As grounds for the termination, Mr. Obinwa, in a termination letter provided to Petitioner, cited complaints about her behavior from both customers and work associates. The complaints included lack of cooperation, abusiveness, failure to follow instructions or to adhere to the delivery schedule, and missed or late medication deliveries. Petitioner asserts that she was terminated on account of gender. There is no credible evidence, direct or indirect, that Respondent's termination of Petitioner's employment was on account of gender. At the time of Petitioner's termination, Respondent employed eight to nine persons, including six to seven females. The employee most similarly situated to Petitioner (the male courier) was not terminated; however, there is no evidence that there were complaints regarding his behavior from either customers or work associates. At the hearing, Petitioner asserted that the male courier generally received the same treatment as did she. The evidence establishes that Petitioner received an additional benefit that was not provided to the male courier. Petitioner was permitted to use a company delivery vehicle for occasional personal transportation. There is no evidence that the male courier was permitted to take the company vehicle for personal use. Petitioner testified that another male employee identified as Herman Jones was hostile towards her and towards other women working for Respondent. Petitioner claimed that Mr. Jones was somehow responsible for her termination. Mr. Jones was a pharmacy technician. Mr. Jones was responsible for imputing prescription information into the computer system and for preparing the medications according to the prescriptions. Prior to being delivered to the customers by the couriers, the medications were checked by a pharmacist. There is no credible evidence that Mr. Jones had any supervisory duties related to Petitioner. There was testimony suggesting that there were personality conflicts between Petitioner and Mr. Jones. There is no evidence that Mr. Jones was involved in Mr. Obinwa's decision to terminate Petitioner's employment, other than the general consideration Mr. Obinwa gave to the complaints from Petitioner's co-workers related to her behavior in the office. At the hearing, Petitioner presented supportive letters from five customers who were apparently pleased with Petitioner's performance. Petitioner made between 100-200 deliveries each week to Respondent's customers. Mr. Obinwa testified that some of the customers to whom Petitioner made deliveries were happy and that others were not. No evidence related to damages to Petitioner was presented during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's complaint be DISMISSED. DONE AND ENTERED this 1st day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 1st day of December, 2004. COPIES FURNISHED: Stephanie N. Rugg City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731-2842 Suzanne M. Mucklow, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Willie Mae Curry 2702 4th Street, South St. Petersburg, Florida 33705-3641 Donna J. Buchholz, Esquire D. J. Buchholz, P.A. 4320 El Prado Boulevard, 15 Tampa, Florida 33629
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her age, race, and/or national origin.
Findings Of Fact The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner's race is black and her nation of origin is Jamaica. She was born on January 12, 1933. Petitioner completed a State of Florida employment application on August 7, 2002, for the position of Human Services Worker II at the Department's Gulf Coast Center in Fort Myers. The state employment application does not require an applicant to list her age or date of birth. All applicants for the Human Services Worker II position were required to sign a "willingness survey" indicating the applicant's willingness to work beyond the hours of a normal shift and/or willingness to work on an assigned day off, if such was required, in order for the facility to meet its minimum staffing requirements. Petitioner read and signed the willingness survey. The Department hired Petitioner for the Human Services Worker II position on September 13, 2002. Her letter of appointment informed Petitioner that she was required to complete a 12-month probationary period before attaining permanent status. Petitioner is a certified nursing assistant ("CNA"), and the job for which she was hired involved the provision of direct care, supervision, and assistance to residents of the Gulf Coast Center. Gulf Coast Center is a 24-hour licensed intermediate care facility for the developmentally disabled, primarily the mentally retarded. Gulf Coast Center's license requires that a minimum number of direct care staff be present and on duty 24 hours per-day, every day of the year, for each residential unit. See 42 C.F.R. § 483.430(d)(3). Petitioner was assigned to the second shift (2:30 p.m. to 11:00 p.m.), with Mondays and Tuesdays as her days off. She worked in the Madison Cottage, which houses 16 profoundly retarded adult females exhibiting a variety of extreme behaviors, including self-injury and aggression towards facility staff. The third shift in Madison Cottage began at 10:45 p.m. and ended at 6:45 a.m. The minimum staff required for the second shift was six persons. The minimum staff required for the third shift was three persons. To ensure that the minimum staff requirements were met, Gulf Coast Center promulgated a "holdover policy," which was in effect at the time Petitioner was hired and throughout her employment. The policy provided that staff persons on one shift could not leave the facility until the next shift met the minimum staffing requirement. In practice, the holdover policy was most commonly invoked when an employee from an incoming shift called in sick. The supervisor of the outgoing shift would first invoke the "pull policy," contacting other cottages in Gulf Coast Center to ascertain whether they could pull an employee from their incoming shifts to fill the slot of the absent employee. If no one was available from another unit, the supervisor would then seek a volunteer from her own cottage to work the incoming shift. If no one volunteered, the supervisor was then required to "hold over" an employee from the current shift. Having signed the "willingness survey," this employee was required to work the extra shift, later receiving compensatory leave to ensure that she did not work more than 40 hours in a given week. Employees were given the opportunity to choose which day of the week they would be available for holdover. If the employee failed to choose a day, then her supervisor would assign a day. Petitioner failed to choose a day and was assigned Wednesday as her holdover day. Prior to May 21, 2003, Petitioner had worked at least one holdover shift without incident. On Wednesday, May 21, 2003, Laurie Whidden was the acting supervisor of Madison Cottage for the second shift. She was informed that a third-shift employee had called in sick. Ms. Whidden attempted to pull an employee from another cottage to cover the shortage, but no one was available. She asked for volunteers to work the third shift, but received no response. Ms. Whidden then informed Petitioner that she would be required to hold over and work the third shift. Petitioner responded that she could not work the third shift, because she could not leave her sick husband at home alone for 16 hours. Petitioner's husband suffered from heart disease, and at that time, his condition was precarious. Petitioner testified that she frequently had to take her husband to the emergency room. However, Petitioner gave Gulf Coast Center no prior notice that she could no longer work a holdover shift, nor did she make any arrangements for the care of her husband on Wednesday, which she knew was her potential holdover day. On May 21, 2003, Petitioner made no effort to ask a fellow second-shift employee to cover for her that night. Petitioner simply went home at the end of the second shift. There was some dispute as to whether Petitioner answered, "Hell, no," when Ms. Whidden asked her to hold over for the third shift. The weight of the evidence supports Petitioner's assertion that her statement was directed at another employee's remark that Petitioner could sue the state if she came home after working the third shift and found her husband dead on the floor. Petitioner was indicating to the other employee that she wanted her husband alive, not money from the state. Petitioner and Beverly Morgan, another second-shift employee, testified that another employee was sent over from another cottage to work the third shift on May 21, 2003, meaning that Petitioner's refusal to stay had no real impact on the staffing of Madison Cottage. Ms. Whidden testified that no one came from another cottage to cover the shortage and that Ms. Whidden herself stayed to work the third shift. Ms. Whidden's testimony is credited on this point. Ms. Whidden informed Colette Fritts, the residential services supervisor of Madison Cottage, that Petitioner refused to hold over for the third shift on May 21, 2003. Ms. Fritts forwarded the report to Gulf Coast Center's human resources division with a recommendation for disciplinary action against Petitioner. The superintendent of Gulf Coast Center terminated Petitioner's employment. Petitioner produced no credible evidence that her age was a factor in the decision to terminate her employment. Ms. Morgan claimed that one night she overheard Ms. Whidden and Leoncia Trevino, another Human Services Worker II in Madison Cottage, discussing Petitioner's age, saying that if she was too old to hold over, she should quit. Given that Petitioner only once refused to hold over, on the night of May 21, 2003, this testimony is not credible. Further, the evidence established that in March and June 2003, probationary employees in their twenties were terminated for refusing to hold over at the end of their shifts. Petitioner produced no credible evidence that her national origin played a role in the decision to terminate her employment. Petitioner, Ms. Morgan, and Carmel Henry, another Madison Cottage employee, all testified that Ms. Whidden, the acting supervisor, wanted to "get rid" of the Jamaican employees in Madison Cottage before the regular supervisor, Monica Franks, herself a Jamaican, returned from sick leave. However, none of them could point to any action by Ms. Whidden to put such a plan into effect or even any statement by Ms. Whidden that would indicate an animus toward Jamaicans. Ms. Whidden testified that at the time of the events at issue, she knew Petitioner was from an island, but didn't know which one. The source of the rumors regarding Ms. Whidden's intention to get rid of the Jamaicans appears to have been Leoncia Trevino. The other workers in Madison Cottage believed that Ms. Trevino had the ear of management. Ms. Whidden credibly testified that she had no special friendship with Ms. Trevino, who was moved out of Madison Cottage on June 24, 2003, after a confrontation with Ms. Henry, and then resigned her employment at Gulf Coast Center the next day. Petitioner produced no evidence that her race played any part in the decision to terminate her employment. Petitioner was still a probationary employee at the time of her dismissal, meaning that she could be dismissed "at will." See Fla. Admin. Code R. 60L-36.005(3). At the time of her hiring, Petitioner received a copy of the Department's Employee Handbook, which informed her that she could be dismissed at will as a probationary employee. Petitioner was aware of the holdover policy and consented to abide by that policy at the time of her employment. On May 21, 2003, Petitioner refused the lawful order of her duly-delegated supervisor to hold over. This refusal constituted insubordination, which would provide cause for dismissal even for a permanent career service employee. See Fla. Admin. Code R. 60L-36.005(3)(d). The evidence produced at hearing demonstrated that the sole reason for Petitioner's termination was her direct refusal to follow the lawful order of her supervisor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Children and Family Services did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 12th day of May, 2005, 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 12th day of May, 2005.
Conclusions Having reviewed the administrative complaint dated July 7, 2010, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed December 23, 2010 11:18 AM Division of Administrative Hearings 2. Respondent shall pay an administrative fine in the amount of Three Thousand Dollars ($3,000). The administrative fine is due and payable within thirty (30) days of the date of rendition of this Order. 3. Checks should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to these case numbers, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 4. Unpaid fines pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. Respondent’s petition for formal administrative proceedings is hereby dismissed. 6. Each party shall bear its own costs and attorney’s fees. 7. The above-styled cases are hereby closed. DONE and ORDERED this _/4 day of _“Pecewber , 2010, in Tallahassee, Leon County, Florida. terim Secretary Agenty for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Toni H. Burgess, Esq. Andrea M. Lang, Senior Attorney Attorney for Respondent Agency for Health Care 3350 Riverwood Parkway, Suite 1400 | Administration Atlanta, Georgia 30339 2295 Victoria Avenue, Room 346C (U. S. Mail) Fort Myers, Florida 33901 (Interoffice Mail) Finance & Accounting Elizabeth W. McArthur, Esq. Agency for Health Care Administrative Law Judge Administration Division of Administrative Hearings Revenue Management Unit The DeSoto Building 2727 Mahan Drive, MS #14 1230 Apalachee Parkway Tallahassee, Florida 32308 Tallahassee, Florida 32399 (Interoffice Mail) (U. S. Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the ZS day of __ Are fe _, 2010. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue The issue is whether Respondent, Higbee Company, d/b/a Dillard’s (“Dillard’s”), discriminated against Petitioner based upon his national origin or disability, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Dillard’s is an employer as that term is defined in section 760.02(7). Dillard’s is a department store chain. Petitioner, a Mexican male, was hired as a sales associate in the men’s department of Dillard’s store at Tallahassee’s Governor’s Square Mall on May 13, 2014. Petitioner’s job was to sell men’s fragrances directly to customers at the store. Allen Gustason was manager of the Dillard’s store at Governor’s Square Mall during the time Petitioner was employed there. Dee Thomas was the assistant store manager. Mark Kronenberger, who testified at the final hearing, was the men’s department sales manager and was Petitioner’s direct supervisor during the entire time that Petitioner worked at Dillard’s. Petitioner started at a salary of $12.00 per hour as a sales associate. His job performance and pay increases were assessed primarily on the basis of sales. On January 6, 2015, Petitioner received a raise to $12.60 per hour. On April 14, 2015, Petitioner was promoted to the position of fragrance specialist and received a raise to $14.50 per hour. Petitioner’s promotion did not change his basic duties, i.e., direct sales to customers. Petitioner’s employment at Dillard’s ended on November 28, 2015. Dillard’s did not dispute Petitioner’s testimony that he was a good and effective salesperson. Petitioner developed a regular clientele of Spanish-speaking customers who liked his ability to communicate with them in their native language. At the time of his hiring, Petitioner received, read, and agreed to abide by Dillard’s Associate Work Rules and General Policies, which among other things forbade insubordination by sales associates. “Insubordination” was defined to include failure to follow lawful instructions from a supervisor and engaging in contemptuous or taunting conduct that undermines the authority of management. As noted in the Preliminary Statement above, Petitioner claims that he is a Mexican male with a disability. The claimed disability is the human immunodeficiency virus (“HIV”). Dillard’s did not dispute that Petitioner has HIV. Petitioner claims that he was harassed by fellow employees because of his Mexican national origin. Petitioner claims that he complained to his supervisors, Mr. Kronenberger and Mr. Gustason, about the harassment. Petitioner claims that no effective action was taken to curb the harassment. Petitioner described a pervasive sense of discrimination at Dillard’s of which he became conscious only after about a year of working there. He testified that he is from California and had no real concept of being discriminated against because of his Mexican heritage. It took some time for him to realize and acknowledge to himself that it was happening. However, Petitioner was unable to describe many specific instances of discriminatory behavior by fellow employees. People were “mean,” or “picked on me,” or “didn’t like me,” but few of Petitioner’s complaints pointed toward racial discrimination as opposed to personal dislike. He complained that co-workers planned parties and get-togethers away from work but never asked him along, even for Mr. Kronenberger’s birthday party, but could only speculate as to the reason for his exclusion. Petitioner testified that he was an aggressive and successful salesperson. While its salespeople are assigned to specific departments, Dillard’s allows them to cross-sell in other departments. Several of the incidents described by Petitioner began when he took customers to other departments to sell them something. The undersigned infers that at least some of the bad feelings toward Petitioner were due to his perceived “poaching” of sales from other sections of the store. Petitioner testified that an employee named Carol would yell at him, apparently without provocation, so consistently that he went out of his way to avoid crossing her path. Petitioner stated that one day Carol screamed that he was good-for-nothing and was a “damn Mexican,” in front of customers and co-workers. Petitioner testified that he had no idea why she did this because he had done nothing to provoke her. He walked away, covering his ears from her abuse. Petitioner testified that he went upstairs and spoke to Mr. Gustason about the incident but that nothing was done. Petitioner stated that he returned to the sales floor. Other employees told him that Carol had worked for Dillard’s for many years and was a friend of Mr. Gustason and that he should not expect anything to be done about her behavior. Petitioner testified that an employee named Eric, who worked in the men’s department, made fun of his accent, particularly Petitioner’s difficulty in pronouncing “Saturday.” Petitioner testified that another fellow employee, a white woman named Amber who also worked in fragrance, was constantly rude and mean to him. In front of customers, Amber would say that she did not know why Petitioner was there, that he was only good for cleaning the counters. Petitioner repeatedly complained to Mr. Kronenberger about Amber. Mr. Kronenberger told him to continue doing a good job and not to focus on Amber. Petitioner stated that Mr. Kronenberger directed Amber to stay away from Petitioner’s counter, but she ignored the order and continued to harass him. Petitioner stated that matters came to a head when he was helping some female customers and went to Amber’s counter one day. He reached behind her to get the fragrance the customers wanted and Amber struck him with her elbow. The customers were aghast and complained to Dillard’s management despite Petitioner’s entreaties that they let the matter drop. Petitioner and Amber were called to the office to meet with Mr. Kronenberger and Yami Yao, the manager of women’s cosmetics. Amber denied everything. The supervisors told Petitioner and Amber to get along. They told Amber to stay away from Petitioner’s counter. Petitioner testified that Amber ignored the instruction and continued to harass him. Petitioner testified that on another day he was approached by a customer who wanted to pay Petitioner for a pair of shoes. Petitioner testified that he asked Mr. Kronenberger about it, because he did not want to steal a sale or anger anyone. Mr. Kronenberger told him that he was there to sell and that cross-selling was fine. As Petitioner was completing the sale, an older white man working in the shoe department threw a shoe at Petitioner and said, “You damn Mexican, I’m going to raise hell against you.” Petitioner testified about an altercation with Risa Autrey, a fragrance model who worked in Dillard’s and who Petitioner stated was another longtime friend of Mr. Gustason. One day, Ms. Autrey approached Petitioner--again, with zero provocation, according to Petitioner--and began berating him, saying that she had no idea why Dillard’s kept Petitioner around. This occurred in front of co-workers and customers. The customers went upstairs and complained to Mr. Gustason, who followed up by admonishing Petitioner to stop telling people to complain to him because nothing was going to come of it. Petitioner testified that a day or so after the incident with Ms. Autrey, he met with Mr. Gustason and Mr. Thomas.4/ During the course of this meeting, Petitioner disclosed his HIV status. Petitioner testified that Mr. Gustason’s attitude towards him changed immediately, and that Mr. Gustason had him fired two weeks later on a pretextual charge of stealing and insubordination. Petitioner testified that he got sick a few days before Black Friday, which in 2015 was on November 27. When he returned to work on November 25, he attempted to give Mr. Gustason a doctor’s note that would have entitled Petitioner to paid leave, but Mr. Gustason would not talk to him. Petitioner worked a long shift on Black Friday. On Saturday, November 28, 2015, he was called to Mr. Thomas’s office about an altercation he had on November 25 with Ms. Yao, the woman’s cosmetics manager. Mr. Kronenberger was also in the office. Petitioner testified that Mr. Thomas accused him of stealing, as well as insubordination to Ms. Yao, and fired him. Two mall security officers, the Dillard’s security officer, and Mr. Kronenberger escorted Petitioner out of the store. Petitioner testified that he was given no paperwork to memorialize his firing or the reasons therefor. Mr. Kronenberger testified at the final hearing. He testified that Petitioner constantly complained about someone not liking him or picking on him. Petitioner never gave him specifics as to what happened. Mr. Kronenberger stated that Petitioner never complained about racial slurs or that any of his alleged mistreatment had a discriminatory element. It was always, “This person doesn’t like me.” Petitioner had issues with tardiness and absenteeism throughout his employment with Dillard’s. Mr. Kronenberger testified that there would be days when Petitioner simply would not show up for work, or would send a text message to Mr. Kronenberger saying that he had things to do or someone he had to meet. Employment records submitted by Dillard’s supported the contention that Petitioner was frequently late for, or absent from, work. Mr. Kronenberger testified that Petitioner was erratic in his communications. Petitioner would send a text message saying he could not come in. Then he would send a text telling Mr. Kronenberger how happy he was to have the job. Mr. Kronenberger recalled once receiving a text from Petitioner at midnight that read, “I know I’ve been bad.” In November 2015, Petitioner had six unexcused absences, including four consecutive days from November 21 through 24. Mr. Kronenberger testified that Petitioner finally admitted that he needed to cut his hours in order to qualify for some form of public assistance. Mr. Gustason told Petitioner that something could be worked out to cut his hours, but that just not showing up for work was unfair to Mr. Kronenberger and the other employees. Mr. Kronenberger testified that Dillard’s would normally terminate an employee with six unexcused absences in one month under the heading of job abandonment. He stated that Mr. Gustason bent over backward to work with Petitioner and keep him on the job. When Petitioner was absent, Mr. Gustason would leave messages for him, asking him to call and let him know what was going on. During the string of November absences, Mr. Kronenberger phoned Petitioner, who said that he was afraid to come into work for fear that Mr. Gustason would fire him. Mr. Kronenberger assured Petitioner that Mr. Gustason had no such intent, but that in any event no one would have to fire him because he had not been to work in a week. Petitioner was effectively “firing himself” by abandoning his position. Petitioner showed up for work on November 25, 2015, at 4:50 p.m. He had been scheduled to come in at 9:45 a.m. Mr. Kronenberger testified that he was not present for Petitioner’s altercation with Ms. Yao, but that Ms. Yao reported she had attempted to counsel Petitioner about gifts with purchases. The promotional gifts were to be given away only with the purchase of certain items, but Petitioner was apparently disregarding that restriction and giving the gifts with non-qualifying purchases. Ms. Yao told Mr. Kronenberger that Petitioner quickly escalated the counseling into a shouting match in front of customers and co-workers. He yelled, “You’re not going to talk to me that way.” Ms. Yao told Petitioner that she worked in another department and did not have to deal with his antics. She told him that she was going to report the matter to Mr. Kronenberger and Mr. Thomas.5/ Mr. Kronenberger testified that his conversation with Ms. Yao was brief because there was no need to give many particulars. He was used to getting reports of employee run-ins with Petitioner and did not need much explanation to get the gist of what had happened. Mr. Kronenberger decided not to raise the issue with Petitioner on Black Friday, the busiest day of the year at the store. On the next day, November 28, Petitioner was called into the office to meet with Mr. Kronenberger and Mr. Thomas. Mr. Kronenberger testified that this meeting was not just about the incident with Ms. Yao but also Petitioner’s absences. In Mr. Kronenberger’s words, “[I]t was to follow up with the incident with Yami, and it was to follow up with, ‘Hey, you’ve just missed a week, you’ve been back a day, and you’re having this blow-up with a manager on the floor.’ Like, ‘What’s going on?’” Mr. Kronenberger testified that neither he nor Mr. Thomas went into this meeting with any intention of terminating Petitioner’s employment. However, two minutes into the conversation, Petitioner was on his feet, pointing fingers, and shouting that he knew what they were trying to do and he was not going to let them do it. He was quitting. Petitioner walked out of the office. Mr. Thomas asked Mr. Kronenberger to walk Petitioner out of the store so that there would be no incidents on the floor with the other employees. Mr. Kronenberger accompanied Petitioner to the fragrance area, where Petitioner retrieved some personal items, then walked him to the door. They shook hands and Petitioner left the store. Mr. Kronenberger was firm in his testimony that no security personnel were involved in removing Petitioner from the store. Petitioner was not accused of stealing. His parting with Mr. Kronenberger was as cordial as it could have been under the circumstances.6/ After Petitioner left his office, Mr. Thomas prepared a “Separation Data Form” confirming Petitioner’s dismissal for “violation of company work rules.” The specific ground stated for Petitioner’s dismissal was violation of the Associate Work Rule forbidding insubordination. Mr. Kronenberger testified that in his mind the “insubordination” included not just the scene with Ms. Yao, but the explosion Petitioner had in the meeting with Mr. Thomas. At the time of Petitioner’s dismissal, Mr. Kronenberger was unaware of Petitioner’s HIV status. Mr. Kronenberger credibly testified that Petitioner’s HIV status had nothing to do with his dismissal from employment at Dillard’s. Mr. Gustason, who apparently was aware of Petitioner’s HIV status, was not at work on November 28, 2015, and was not involved in the events leading to Petitioner’s dismissal. Mr. Thomas, the assistant store manager, made the decision to treat Petitioner’s situation as a dismissal for cause.7/ Mr. Kronenberger’s testimony is credited regarding the circumstances of Petitioner’s dismissal and as to the general tenor of Petitioner’s employment at Dillard’s. Petitioner was constantly in the middle of conflicts, but never alleged until after his termination that these conflicts were due to his national origin or disability. Petitioner’s demeanor at the hearing was extremely emotional. He cried frequently and seemed baffled that Mr. Kronenberger was disputing his testimony. The undersigned finds that Petitioner’s version of events was genuine in the sense that it conveyed Petitioner’s subjective experience of his employment as he recollected it. However, the undersigned must also find that Petitioner’s subjective experience did not conform to objective reality. However, Petitioner internalized the experiences, it is not plausible that Dillard’s employees were yelling at Petitioner without provocation, hitting him, throwing shoes at him, and calling him a “damn Mexican” in front of customers. It is not plausible that Petitioner’s superiors would ignore such flagrant discriminatory behavior when it was brought to their attention. Petitioner’s feelings about the motives of his co-workers and superiors cannot substitute for tangible evidence of unlawful discrimination. Petitioner offered the testimony of two Dillard’s customers, neither of whom saw behavior from Petitioner’s co- workers that could be attributed to anything beyond personal dislike or sales poaching. Santiago Garcia testified that he noted other Dillard’s employees rolling their eyes at Petitioner, but he thought the reason might be that Petitioner talked too loud. Mr. Garcia also saw “bad looks” from other employees and believed that the atmosphere among Dillard’s employees was “tense,” but did not offer a reason for the tension. Claudia Pimentel testified, through a Spanish language interpreter, that she always went directly to Petitioner because she speaks only Spanish and Petitioner was able to help her. Ms. Pimentel noted that a female Dillard’s employee got mad at Petitioner because he sold Ms. Pimentel a cream from her counter. During the years 2015 and 2016, the Dillard’s store in Governor’s Square Mall terminated two other sales associates for insubordination. Neither of these sales associates was Mexican. One was a black female and the other was a black male. Neither of these sales associates had a known disability at the time of termination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reason given by Dillard’s for his termination. Petitioner offered no credible evidence that Dillard’s stated reason for his termination was a pretext for discrimination based on Petitioner’s national origin or disability. Petitioner offered no credible evidence that Dillard’s discriminated against him because of his national origin or his disability in violation of section 760.10.
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 Higbee Company, d/b/a Dillard’s, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of October, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October 2017.
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1] HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Stuart M. Lerner, Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this \ gs day of Qc , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ELLEN GLANZBERG, Petitioner, v. CASE NO. 09-2458 DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Respondent. / PETITIONER’S NOTICE OF WITHDRAWAL OF PETITION Petitioner, ELLEN GLANZBERG, through undersigned Counsel, hereby files this Petitioner’s Notice of Withdrawal of her Petition without prejudice. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on JuLY 21%, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified in the attached service list via transmission of Notice of Electronic Filing generated by CM/ECF and via e-mail to Larry D. Scott, Esq., Asst. Gen’] Counsel, DMS, Division of Retirement, 4050 Esplanade Way, Suite 160, Tallahassee, FL 32399- 0950. : By: s/Jane Letwin, Esq, FLA.BAR NO. 990329 Law Office of Jane M. Letwin Attorney for Plaintiffs 5426 SW 25" Avenue, Fort Lauderdale FL 33312 Tel: 954 297 4057; Fax: 954 301 8401 EXHIBIT Filed July 21, 2009 8:00 AM Division of Administrative Hearings. man SERVICE LIST Marylin Batista-McNamara, Esq. Office of the School Board Attorney 600 SE Third Avenue, 11" Floor Fort Lauderdale Fl 33301
The Issue Whether or not Petitioner, Cynthia C. Barber, was harassed, and suffered constructive or retaliatory discharge from employment by Respondent, Modern Plumbing Industries, Inc. ("MPI"), as a result of racial and gender discrimination in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black female who, at all times material to the allegations of discrimination in the case, was employed as a plumbing apprentice by Respondent. Respondent is a Florida corporation which operates a commercial plumbing business. At any given time, Respondent may have 20-30 commercial plumbing jobs in Central Florida. These jobs run the spectrum from small residential repair jobs to major commercial installations in shopping centers. Petitioner began working for Respondent in 1996; first as a plumbing assistant, then, after being enrolled in a formal plumbing apprentice program, as a plumbing apprentice, assisting licensed plumbers. When she began working, Respondent sent Petitioner to a wholesale tool supplier where she purchased plumbing tools she would need. Respondent advanced Petitioner the money with which to purchase the tools; this advance was being paid back by automatic withdrawals from Petitioner's pay. In September and October 1997, Petitioner was working as a plumber's apprentice at a job known as the "Oviedo Mall" job. She was one of 10-40 MPI employees on the job. Steven Lewis was the project manager for all MPI jobs. Vincent Pizzuti was the job-site supervisor for the Oviedo Mall job. Chris Bateman was a MPI employee at the Oviedo Mall job working as a plumber. Mr. Bateman had no supervisory authority. In September 1997, an incident occurred wherein Mr. Bateman, who is a white male, threw paper which had been used to wrap a sandwich and a soda can in Petitioner's hard hat. Petitioner was offended by Mr. Bateman's actions and reported the incident to her crew foreman, Mike Higdon. Mr. Higdon immediately asked Mr. Bateman to stop; after a moment, Mr. Bateman stopped. Petitioner believed that this matter was handled satisfactorily. On October 1, 1997, late in the work day, while riding on a golf cart with Mr. Higdon, Petitioner was struck in the back with a "dirt rock." When she turned in the direction the "dirt rock" had come from, she saw Mr. Bateman and another employee looking her way and laughing. Petitioner confronted Mr. Bateman. When she returned to the golf cart, Mr. Bateman threw another "dirt rock." This time the confrontation became physical, and Petitioner and Mr. Bateman had to be separated by co-employees. Petitioner then reported the incident to Mr. Pizzuti who called a co-employee/supervisor on the radio and asked that Mr. Bateman be directed to come to MPI's on-site office. Mr. Bateman had either left the job-site or wouldn't respond to the directive to report to the office; as a result, Mr. Pizzuti advised Petitioner that he would talk to Mr. Bateman the following morning. Later that same evening Petitioner called Mr. Lewis, the project manager. Mr. Lewis advised Petitioner that Mr. Pizzuti had already advised him regarding the altercation, that Mr. Bateman's conduct was unacceptable, and that Mr. Bateman would be fired the following day. The following morning (October 2, 1997), Mr. Bateman was standing outside the job-site office when Petitioner arrived. During a discussion with a co-employee, Petitioner heard Mr. Bateman referring to her as a "bitch" and a "nigger." This resulted in another confrontation. Petitioner then went into the MPI job-site office and reported this incident to Mr. Pizzuti. Mr. Pizzuti then radioed Mr. Bateman's supervisor and directed that Mr. Bateman report to the office. After a few minutes, when Mr. Bateman had not reported to the office, Petitioner advised Mr. Pizzuti that she "could not work under these conditions" and left the job-site. Later that same day, Petitioner received a telephone call from Mr. Lewis who asked her "to come back to the job site, that something would be done" about Mr. Bateman. She told Mr. Lewis that the atmosphere was "too hostile." On October 2, 1997, shortly after Petitioner left the job-site office, Mr. Pizzuti met with Mr. Bateman about his conduct and attitude; an incident report authored by Mr. Pizzuti reflects that Mr. Bateman "became aggravated and stormed out of my [the] office in the middle of the conversation." At this point, Mr. Pizzuti terminated Mr. Bateman. Two days after being terminated, Mr. Bateman was rehired because he "begged for his job back"; MPI was desperate for help; and Petitioner was no longer working at the job-site. Approximately one week after leaving her job, Petitioner attempted to collect her last pay check. She was advised by Mr. Lewis that she had no pay coming because the money advanced for tools had not been paid back. He further advised her that she could be paid if she returned to work and the automatic deduction from her pay continued. During this discussion Mr. Lewis advised Petitioner (quoting Petitioner's testimony) that she "would not have to work with Chris Bateman," apologized for what happened, and assured her "this won't happen again." Petitioner elected to return to work and was assigned to a MPI job-site at Walt Disney World. Mr. McCandless was her job-site supervisor. Although the Walt Disney World job-site was not as convenient to her home as the Oviedo Mall job-site, Petitioner did not make any complaint to MPI management about the re-location. After she started working at the Walt Disney World job-site, Petitioner requested a Friday day-off for child- related reasons; her request was granted. The following Sunday, Petitioner called the MPI answering service to determine what job-site to report to the next day. This was a procedure that was normally used to determine where to report for work. The answering service advised that she was scheduled "off" for Monday. She repeated the process on Monday night and was again advised that she was scheduled "off" for Tuesday. On Tuesday morning, Petitioner telephoned the MPI office and asked to speak to Mr. Lewis and was advised that Mr. Lewis was on vacation. Petitioner then asked to speak to the owner of MPI; she was advised that the owner was not available. Petitioner did not telephone or visit the MPI office following the Tuesday morning telephone call. She did not attempt to call her job-site supervisor, Mr. McCandless. Petitioner just stopped working at MPI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief herein should be dismissed with prejudice. DONE AND ENTERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. 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 9th day of August, 2002. COPIES FURNISHED: Cynthia C. Barber 1704 Hawkins Avenue Sanford, Florida 32771 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amanda J. Green, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2009.
The Issue Whether this cause is barred by a release of all claims.
Recommendation Based on the foregoing Undisputed Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Maurice G. Hargrove, Sr.’s, Petition for Relief from employment discrimination due to a lack of jurisdiction. DONE AND ENTERED this 28th day of September, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2016
The Issue Whether Respondent was an “employer” under the Florida Civil Rights Act of 1992 and related laws (collectively, the Act) during the time of its alleged age discrimination against Petitioner.
Findings Of Fact Petitioner is a male over 40 years old. According to Petitioner?s Discrimination Complaint, he was 69 years old in January, 2013, when Respondent allegedly discriminated against him by failing to hire him because of Petitioner?s age. Although Respondent?s CEO, Glen Royce Brooks, did not appear to testify at the final hearing, the parties stipulated to the introduction of his affidavit (Exhibit R-1) in lieu of his live testimony. In fact, Mr. Brooks? affidavit and Respondent?s quarterly tax returns and unemployment reports were all received into evidence without objection and with Petitioner?s further stipulation that they could be received into evidence as non- hearsay. Respondent?s exhibits indicate that at no time relevant to Petitioner?s claim did Respondent have more than 13 employees, even when two professional service providers, consisting of an accountant and an employee-leasing company, are counted as two additional employees. Petitioner has no independent knowledge of the number of employees that Respondent has or had at the time of the alleged discrimination. Nevertheless, Petitioner relies on paragraph 12 of Mr. Brooks? affidavit to support Petitioner?s theory that Respondent had the requisite number of employees to be an “employer” within the meaning of the Act. Paragraph 12 of Mr. Brooks? affidavit states: Brooks Logging retains an accountant and employee leasing service to provide accounting and employee management services. According to Petitioner, because the employee-leasing service was an agent of Respondent, all of the employees of the employee-leasing service should be considered employees of Brooks Logging Company and, therefore, Respondent was an “employer” within the meaning of the Act. Respondent?s counsel stipulated at the final hearing that the employee-leasing service utilized by Respondent is a nationwide company which employs more than 15 employees. There was no evidence presented, however, indicating any ownership or control by the employee-leasing company over Respondent?s relationships with Respondent?s employees or vice versa. Petitioner otherwise failed to demonstrate that Respondent had 15 or more employees during the time relevant to Petitioner?s Discrimination Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner?s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 11th day of February, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2014.
The Issue Whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. McMillian, at the time of the hearing, was a 30-year-old resident of Marianna, Florida. He is an African- American. CBO is an employer as that term is defined in Subsection 760.02(7), Florida Statutes, and thus subject to the Florida Civil Rights Act of 1992. CBO provides in-home support to clients who need help in addressing their daily needs. The program under which they operate is run by the Agency for Persons with Disabilities (Agency). Mr. McMillian worked for CBO from January 25, 2006, until August 28, 2006. He worked as a caretaker in a private home. He took care of two men with mental disabilities. Both of the men, clients of CBO, were of the Caucasian race. Mr. McMillian was required to keep a "journal of living" that, when kept up-to-date, recorded the activities in the home and provided an account of client funds. CBO did not have enough homes in the Marianna area to warrant a supervisor, so Donald Bradley Graham, Executive Vice-President of CBO, was assigned to supervise the single-home maintained in Marianna, which was the home in which Mr. McMillian worked. Mr. Graham is of the Caucasian race. Mr. McMillian had conflicts with one of the clients. Mr. Graham gave Mr. McMillian a cleaning checklist to aid him in maintaining the cleanliness of the home, because there were issues involving sanitation, or more specifically, issues involving deficiencies in sanitation. Mr. Graham also found that Mr. McMillian was not keeping track of spending and was not maintaining receipts. Barbara Williams, a "life coach," also interacted with Mr. McMillian. Ms. Williams is of the Caucasian race. A "life coach" pays the bills for a client's house, makes medical appointments, and addresses the administrative needs of clients. Ms. Williams did not supervise Mr. McMillian. Mr. McMillian and Ms. Williams had a dispute involving the grocery supply for the house. Allegations were made by Ms. Williams and a client that Mr. McMillian had purloined raw chicken from the house. Mr. McMillian was informed on August 28, 2006, that CBO had suspended him and that he was the subject of an abuse investigation by the Department of Children and Family Services (DCFS). The allegations of theft were not proven. An abuse investigation conducted by DCFS Investigator Culbreath determined that no abuse had occurred. However, in the interim, the CBO clients in the home informed CBO that they did not want Mr. McMillian to return. If a client served by CBO does not want a particular person to work in his or her home, then that person, by Agency rules, may not work there. The client does not have to offer a reason for not wanting a person working in his or her home. Mr. McMillian was offered other work with CBO in homes in the Panama City area but made no effort to take advantage of the offer. The evidence is clear that he was not terminated and was not the subject of discipline.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of August, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 9th day of August, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Rodney McMillian 4052 Old Cottondale Road, Apartment 805 Marianna, Florida 32448 R. W. Tres Long Chief Financial Officer Community-Based Options, Inc. Post Office Box 438 Panama City, Florida 32402-0438 Glen Lord Community-Based Options, Inc. Post Office Box 438 Panama City, Florida 32402 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
