The Issue : The issue to be resolved in this proceeding concerns whether Petitioner has a disability, whether she was discriminated against based upon the disability, whether there was a reasonably requested accommodation which was refused by the Respondent employer, and whether it maintained a hostile working environment.
Findings Of Fact This cause arose upon the filing of a Charge of Discrimination and ultimately a Petition for Relief by the above-named Petitioner against the Respondent, Principal Senior Living Group, d/b/a Benton Village (Benton Village or Respondent). The Petitioner was an employee at the Respondent's assisted living and memory care facility, located in Panama City, Florida. That facility employs approximately 28 to 30 employees and had 53 residents as of the time of hearing. The Respondent has an equal employment opportunity policy in place which precludes discrimination on the basis of any protected status including handicap or disability as to any employees, customers, vendors, or applicants for jobs. The Petitioner signed a document indicating that she had received a copy of that policy when she began employment on or about January 29, 2007. The Respondent, enforces the policy against discrimination and harassment and encourages employees to bring any such discrimination or harassment issues to the Respondent's attention so that it can take necessary steps to correct the situation. The Petitioner received a handbook at the beginning of her employment period that outlined the Respondent's benefits, practices, and policies. The Equal Opportunity Policy is restated in that handbook. On page 18 of the handbook under the title "Discourtesy or Disrespect," the Respondent stated a rule as follows: We expect all employees to be courteous, polite and friendly to our residents, vendors, and to their fellow employees. No one should use profanity or show disrespect to a resident or co-worker, or engage in any activity that could harm the company's reputation. The Petitioner began working for the Respondent in early February 2007 as a personal care assistant (PCA). Her general job description included assisting residents with personal care and activities of daily living and performing daily housekeeping tasks. Mr. Alan Williams is the Respondent's executive director. His duties involve resident care staffing including evaluation for promotion and administering discipline and managing the facility's budget. Mr. Williams was responsible for evaluating the Petitioner's job duties and performance. The Petitioner's immediate supervisor was Tiffany Sims who was the Resident Services Director while the Petitioner was employed at the Respondent's facility. The Petitioner is hearing-impaired and wears a hearing aid that allows her to hear within a normal range and follow normal conversations. She does have difficulty hearing when people speak in a low voice and at times has to request them to speak louder. The Petitioner acknowledged that her hearing aid allowed her to perform her job without any special treatment. Moreover, she was able to attend training course, which involved listening to a lecturer in a classroom, and did not request or need any special accommodation to understand the lecturer. When the Petitioner was hired by the Respondent, she did not tell anyone she had a disability that prevented her from performing the job duties in her job description. She received the same training as the other employees and did not request or receive accommodations for her alleged hearing impairment during the training process. She acknowledged that she did not request special treatment because she did not need special treatment. During her testimony at hearing she admitted that she had never requested an accommodation of her employer. During less that three months of employment she was disciplined once by Ms. Sims and on two separate occasions by Mr. Williams. The Petitioner admits receiving corrective action admonishments from Ms. Sims on or about February 8, 2007. The corrective action document informed the Petitioner that there had been several resident complaints regarding the Petitioner's resident care and the care with meal assistance. The corrective action also embodied an instruction to the Petitioner that within 30 days she should show significant improvement with care of residents, with no resident complaints or she could be subject to termination. Mr. Williams disciplined the Petitioner on February 26, 2007. He was notified on that occasion by Supervisor Sandy Simon and his Assistant Director Renee Rhodes, that the Petitioner had been observed watching television by herself in the Alzheimer's ward. Mr. Williams went to an office where he could view a security monitor and personally observed the Petitioner watching television by herself. Mr. Williams accordingly executed a corrective action form or memorandum to the Petitioner, which the Petitioner admits receiving. Mr. Williams administered discipline to the Petitioner on a second occasion on Tuesday, April 3, 2007. Mr. Williams had learned that the Petitioner had been involved in an altercation with a resident that involved raising her voice, yelling and engaging in disruptive behavior. Mr. Williams informed the Petitioner that this was unacceptable behavior and reflected badly on the Respondent. The Petitioner admitted the occurrence to Mr. Williams when he questioned her. There is a dispute over whether the Petitioner quit or was terminated as a result of this discussion. Mr. Williams established that, under the duly-adopted policy, arguing with a resident can be a terminable offense. Mr. Williams' testimony is deemed credible and is accepted. It was thus established that the Petitioner became angry and informed Mr. Williams that she was quitting her employment during the course of this discussion. One other incident occurred with Mr. Williams when he terminated an employee because the employee had yelled or cursed at a coworker. The employee who was terminated did not have any sort of disability of which Mr. Williams was aware. Mr. Williams' undisputed testimony shows that the Petitioner's hearing impairment did not play any role in the decision to discipline for the television incident, nor in the decision to speak to her about the altercation with the resident or with any other employment decision he made with regard to the Petitioner. The Petitioner admitted that Mr. Williams never made any negative comments to her about her hearing or hearing impairment. The Petitioner contended that some co-workers made fun of her hearing impairment during the course of her employment. The Petitioner acknowledged, however, that she never complained of this to the Human Resources manager or to Mr. Williams, even though she had received a copy of the company's policies against harassment and discrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety. DONE AND ENTERED this 15th day of May, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2008. COPIES FURNISHED: Demetrice Worthy Post Office Box 121 Panama City, Florida 32401 Scott E. Wood, Esquire 990 Hammond Drive, Suite 910 Atlanta, Georgia 30328 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
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue The issues are whether Respondent subjected Petitioner to unlawful employment practices by discriminating against her based on her age, sex, and/or disability contrary to Section 760.10(1), Florida Statutes (2003), and by retaliating against her contrary to Section 760.07, Florida Statutes (2003).
Findings Of Fact On or about February 17, 1992, Petitioner began working for Respondent in the College of Pharmacy and Pharmaceutical Sciences as an Other Personnel Services (OPS) Secretary. On or about January 11, 1993, Petitioner became a Program Assistant in the University and Support Personnel System. In late 1999 or early 2000, Petitioner began working as an Administrative Assistant for Dr. Folakemi Odedina, a Professor and Director of the Economic, Social, and Administrative Pharmacy Division (ESAP). Initially, Petitioner enjoyed working for Dr. Odedina in an office located in the Frederick S. Humphries Science and Research Center (Science and Research Center). However, in time Petitioner's professional relationship with Dr. Odedina began to deteriorate, along with the expanding responsibilities of the job.1 In January 2001, Petitioner fell while she was carrying some documents from one of Respondent's buildings to another. The fall injured Petitioner's ankle, hip, and lower back. Petitioner was pregnant at the time of her fall in January 2001. She filed a workers' compensation claim as a result of the accident and subsequently returned to work with medical limitations as to activities involving lifting and walking. In a memorandum dated May 16, 2001, Petitioner advised Dr. Odedina and the ESAP faculty that she soon would be going on three to four months of parental leave. She also advised them that she had removed her personal belongings and other items belonging to other departments that had been on loan to her. In June 2001, Petitioner fell again while she was at work. She was in her ninth month of pregnancy at the time of the second accident. She decided not to return to work until after the birth of her baby. In a memorandum dated June 14, 2001, Dr. Odedina acknowledged that Petitioner would be out on sick leave, followed by parental leave until October 2001. Dr. Odedina wanted Petitioner to turn in her office keys and provide information about the office voicemail password so that the office would continue to function efficiently during Petitioner's absence. Apparently, Petitioner had not removed her personal belongings from her office as stated in her May 16, 2001, memorandum. On June 14, 2001, Petitioner and Melvin Jones, an investigator for Respondent's Police Department went to the office after 5:00 p.m. to remove Petitioner's personal belongings. During the moving process, Mr. Jones took a typewriter and a chair, both of which were university property on loan to Petitioner from another university office, to the library on the fourth floor of the Science Research Center. Petitioner intended to leave the chair and the typewriter there until someone could return them to the office in the department to which they were officially assigned. Additionally, in packing her personal items, Petitioner or Mr. Jones inadvertently packed and removed a black office telephone from the premises. On June 15, 2001, Dr. Odedina noticed that the typewriter and telephone were missing from Petitioner's office. After making an unsuccessful effort to contact Petitioner, Dr. Odedina reported to Respondent's Police Department that the typewriter and telephone were missing from Petitioner's office. Respondent's Police Department immediately initiated an investigation of unauthorized removal of state property with Petitioner as the suspect. On June 15, 2001, Petitioner realized that she had mistakenly packed the black telephone with her personal belongings. She returned it to Respondent that same day. Thereafter, Respondent's Police Department closed its investigation after verifying that Petitioner never removed the typewriter from the Science Research Center and that she returned the telephone on June 15, 2001. On June 25, 2001, Petitioner delivered her baby. Subsequently, Petitioner received medical treatment for physical problems that were the result of her on-the-job falls. Between parental leave and workers' compensation leave, Petitioner was out of work for approximately eighteen months. During Petitioner's absence from work, Dr. Odedina hired an OPS employee to temporarily fill Petitioner's position. At some point in time, Petitioner contacted FCHR to make an inquiry concerning discrimination. In a letter dated August 28, 2002, relative to FCHR Case No. 2202827, FCHR advised Petitioner as follows: "Based on the information you provided, we are unable to pursue this matter further." FCHR then cited Section 760.11(1), Florida Statutes (2002), for the proposition that a complaint must be filed within 365 days of the alleged discriminatory act. From 1994 to 2004, and at all times relevant here, Dr. Henry Lewis was the Dean of the College of Pharmacy and Pharmaceutical Sciences. From January 2002 through July 2002, Dr. Lewis also served as Respondent's interim president. Since 2004, Dr. Robert Thomas has served as Dean of the College of Pharmacy and Pharmaceutical Sciences. At all times relevant here, Dr. Thomas served as Associate Dean of the College of Pharmacy and Pharmaceutical Sciences. In a letter dated October 9, 2002, Dr. Lewis advised Petitioner that he had received documentation from Ruth Beck, Petitioner's Rehabilitation Consultant, regarding accommodations for Petitioner's return to work with medical restrictions. Dr. Lewis requested that Petitioner meet with Respondent's Equal Opportunity Programs Office to determine what accommodation are to be provided upon Petitioner's return to work. The recommended accommodations included an ergonomic chair and a desk equipped with a keyboard tray and mouse extension. It was also suggested that Respondent provide Petitioner with a flat screen monitor and a utility cart because Petitioner's permanent office in the Science and Research Center was small and too cramped to accommodate Petitioner's physical limitations. Petitioner needed a more spacious work area, with adequate storage space in close proximity, than was available in her office at the Science and Research Center. Even with the new furniture and equipment, Petitioner's needs could not be met in her old office. Accordingly, it was mutually agreed that, upon her return to work, Respondent would assign Petitioner to work temporarily in the Division of Pharmacy Practice, under the supervision of Dr. Otis Kirksey. Dr. Kirksey's office was located off-campus at 565 East Tennessee Street, Tallahassee, Florida, in a building with a ramp and without stairs that Petitioner would have to climb. Petitioner's assignment to work in Dr. Kirksey's office was temporary. Dr. Odedina and the ESAP faculty and staff planned to move to the new Dyson Pharmacy Building as soon as it was completed. The new facility would have sufficient space, furniture, and equipment to accommodate Petitioner's needs in her position as Administrative Assistant to Dr. Odedina. In November 2002, Petitioner learned that her doctor would not sign a form stating that Petitioner had a permanent disability. Instead, he agreed that she needed a disabled parking permit for a temporary period, for three months through February 5, 2003. On December 2, 2002, Petitioner began to work for Dr. Kirksey as an Administrative Assistant/Receptionist. She agreed to begin working in that capacity even though all the accommodations she needed were not immediately available. Petitioner was eager to return to work. By February 18, 2003, Respondent had provided Petitioner with all necessary accommodations. She had the ergonomic chair and a desk equipped with a keyboard tray and mouse extension. Given her more specious work area, a flat screen monitor and/or utility cart was not required to accommodate her physical limitations. Petitioner did not want to return to work for Dr. Odedina under any circumstances. She was aware that Dr. Kirksey was going to hire a new employee for a Program Assistant position. However, Petitioner never applied for the new Program Assistant position because she believed that Dr. Kirksey had already made up his mind to hire another person for the job. There is no evidence that Dr. Kirksey ever intended to deprive Petitioner of the opportunity to apply for the Program Assistant position or that he would not have considered her application if she had filed one. On October 6, 2003, Petitioner had a meeting with Dr. Lewis about her work assignment. During the meeting, Petitioner and Dr. Lewis discussed another position that was available. The position involved keeping track of student volunteer hours. After the meeting, Petitioner mistakenly believed that Dr. Lewis had offered her the new position, which would not have been under Dr. Odedina's supervision. During the October 6, 2003, meeting, Dr. Lewis asked Petitioner how things were going in her private life, i.e. whether she had anyone special in her life. Petitioner replied that she did not have such a relationship and that with all the drama she was experiencing in her personal life, she did not need to be involved with anyone. There is no indication that Petitioner was offended by Dr. Lewis's personal expressions of concern for Petitioner's well being. On October 8, 2003, Petitioner met with Drs. Lewis and Thomas. During the meeting, Petitioner adamantly refused to return to work for Dr. Odedina. Petitioner made the following statement: "I do not want to see FAMU facing a wrongful death lawsuit for an employee killing a supervisor." Drs. Lewis and Thomas were concerned about the statement, which they understood to be a threat against Dr. Odedina. However, they believed they would be able to handle any problem that might arise when Dr. Odedina joined the prescheduled meeting. Petitioner was agitated during the meeting with Dr. Lewis and Dr. Thomas. She became more agitated when Dr. Odedina joined the meeting. Dr. Odedina went to the meeting expecting to discuss Petitioner's office space and accommodations when she moved into the Dyson Pharmacy Building with the rest of the ESAP faculty and staff. She was not aware that Petitioner had made a threatening comment. Initially, Dr. Odedina was obviously pleased that Petitioner would be returning to work for her. However, as the October 8, 2003, meeting proceeded, Dr. Odedina felt that Petitioner's demeanor was hostile. Dr. Odedina got the impression that Petitioner was resisting the idea of returning to work for Dr. Odedina. At that point, Dr. Odedina insisted that Petitioner return to work for ESAP or, if Petitioner continued to work for Dr. Kirksey, his office should be responsible for paying Petitioner's salary. At one point during the October 8, 2003, meeting Petitioner complained that she suffered from migraine headaches and depression. She showed Drs. Lewis, Thomas, and Odedina prescriptions for Imatrex and Prozac. Before Petitioner left the meeting on October 8 2003, Dr. Lewis told Petitioner that she should write a letter stating that she refused to return to work in the ESAP office under Dr. Odedina's supervision. Petitioner subsequently wrote a letter, describing it as a "notice of transfer," but clearly indicating that she chose not to return to work for Dr. Odedina. After Petitioner and Dr. Odedina left the October 8, 2003, meeting, Drs. Lewis and Thomas discussed Petitioner's threatening statement against Dr. Odedina. They decided to report it as a serious threat of bodily harm to Respondent's Director of Personnel, Vice President for Academic Affairs, and Provost, first by telephone, and later in writing. Dr. Lewis also contacted Dr. Odedina by telephone, advising her of the threat and directing her not to report to work on October 9, 2003. Finally, Dr. Lewis informed Respondent's Police Department about the threatening statement. Respondent's Provost, Larry Robinson, drafted a letter dated October 9, 2003. According to the letter, Petitioner was on administrative leave with pay, effective upon receipt of the notice. The letter advised Petitioner of a pending investigation of an employment matter and directed her to return all university-owned property. The letter advised Petitioner to refrain from reporting to work or visiting the campus, until further notice. The only exception was that Petitioner could continue to transport one of her sons to Respondent's Developmental Research School. On October 10, 2003, Respondent's Police Department initiated a formal investigation about Petitioner's threatening statement based on the written statements of Drs. Lewis and Thomas. On that date, Respondent's investigator, James Rose, filled out an incident report, indicating that he had interviewed Dr. Odedina and that Respondent's Director of Personnel had requested him to deliver the October 9, 2003, letter to Petitioner. Officer Rose was not able to deliver the October 9, 2003, letter to Petitioner until October 11, 2003. After Officer Rose gave Petitioner the letter placing her on administrative leave with pay, Petitioner stated that she only made the comment about Dr. Odedina because the department was about to transfer her back to Dr. Odedina's office. Petitioner told Officer Rose that she never intended to harm Dr. Odedina. On October 13, 2003, Petitioner returned her office key to Respondent. She left the key at Respondent's Police Department's communications office. On October 14, 2003, Petitioner filed her first Employment Charge of Discrimination with FCHR. In that initial complaint, identified hereinafter as DOAH Case No. 04-2003, Petitioner alleged as follows: (a) Respondent discriminated against Petitioner based on her disability by failing to accommodate her back impairment; (b) Respondent discriminated against Petitioner based on her age because Respondent did not give Petitioner an opportunity to apply for a position ultimately given to a younger, less senior employee; and (c) Respondent placed Petitioner on administrative leave with pay. In a letter dated October 31, 2003, Respondent advised Petitioner that Respondent intended to terminate her employment for threatening and/or abusive language and conduct unbecoming to a public employee. In an undated letter, Petitioner requested a conference in order to make an oral or written statement to refute or explain the charges against her. On or about November 3, 2003, Petitioner requested information about the return of her personal property located in Dr. Kirksey's office. Officer Rose approved Petitioner's request to retrieve her property. Sometime after November 3, 2003, Officer Rose concluded that Petitioner had made a threatening statement. However, Officer Rose found no indication that Petitioner intended to carry out the threat against Dr. Odedina. Accordingly, Respondent's Police Department suspended its investigation. In a letter dated November 17, 2003, Respondent advised Petitioner that it had scheduled a predetermination conference on November 24, 2003. By letter dated December 8, 2003, Petitioner informed Respondent that she received the November 17, 2003, letter on December 5, 2003. She asserted that she did not receive timely notice of the predetermination conference. In a letter dated December 11, 2003, Respondent advised Petitioner that it was proceeding with the employment action. According to the letter, Petitioner's dismissal from employment would be effective on December 19, 2003. However, Petitioner had an opportunity to request arbitration. On December 19, 2003, Petitioner reminded Respondent that she did not receive timely notification of the predetermination conference. She requested Respondent to schedule another conference. In a letter dated January 9, 2004, Respondent advised Petitioner that it had scheduled a predetermination conference for January 13, 2004. However, a subsequent letter dated January 13, 2004, rescheduled the conference for February 18, 2004. In a letter dated March 3, 2004, Respondent advised Petitioner that her dismissal from employment was effective March 11, 2004. On February 2, 2005, Petitioner filed a Consented Motion for Abatement or Alternatively, Notice of Voluntary Dismissal without Prejudice in DOAH Case No. 04-2003. On February 8, 2005, Administrative Law Judge Diane Cleavinger entered an Order Closing File in DOAH Case No. 04-2003. Judge Cleavinger's order is silent as to any prejudice that might have resulted from closure of the file in DOAH Case No. 04-2003. However, the parties agreed during the hearing in the instant case that FCHR never entered a final order in the prior case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2005.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner proved that Respondent discriminated against her on the basis of her race at Respondent's restaurant or place of public accommodation, and, if so, what the relief should be.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and relevant facts: Scott is an African-American woman. On May 22, 2015, Scott visited the McDonald's in Marathon, Florida, with her husband in the afternoon. Scott ordered two meals, including a hamburger, and testified that the type of hamburgers she received at the inside counter were incorrect. Scott complained to the counter staff and was provided the correct hamburgers and ultimately received the food that she ordered. Scott then complained that the new burger she was given was cold. She insisted on getting another burger and also demanded to keep the first one. There were several customers inside the McDonald's on the afternoon in question, and Scott's actions and demeanor were visible to and done in the presence of the other customers. Scott became loud and started screaming at the employee(s) behind the counter. Scott's dissatisfaction and yelling caused a disturbance in the store in front of other patrons and also caused patrons in the drive-through line to ask what was going on inside. The disturbance Scott was creating escalated to the point that the counter employee could not handle Scott and had to turn the matter over to a supervisor, who tried to quell the problem. The supervisor was not successful either. One of the managers of McDonald's called the police in response to Scott's disruptive behavior. It was not until then that Scott left the service counter and sat back down.1/ Deputies Matthew O'Neill and Rose DiGiovanni of the Monroe County Sheriff's Department arrived. Upon their arrival, Scott was still yelling, protesting, and being disruptive, again, inside the restaurant, around other patrons. Because Respondent requested a trespass notice be issued, Deputy O'Neill reminded Scott that, if she did not leave the premises, she would be arrested. Instead of promptly departing, Scott demanded her money back. Deputy O'Neill advised Scott that the restaurant did not have to refund her the money, particularly if Scott was going to keep the food she was given. McDonald's staff nevertheless decided to refund Scott her money in an effort to accommodate her and resolve the matter. Scott testified that she did receive her money back. As they were being escorted out by Deputies O'Neill and DiGiovanni, Scott's husband told Deputy O'Neill to take off his uniform so that he could fight him. Deputies O'Neill and DiGiovanni escorted Scott and her husband out of the premises and advised them of the trespass warning that McDonald's had asked to be issued. Once outside, Scott continued to yell at the officers across the parking lot. Scott never mentioned to the staff or officers that her race (African-American) or race discrimination by McDonald's, or its staff, played any role in (1) the service or hamburger product or type delivered to Scott during the incident or (2) McDonald's response to the incident. Likewise, the undersigned heard no persuasive evidence to suggest or prove that race discrimination played any role in the incident that day. No action, inaction, or treatment of Scott was because of her race. Other than conclusory allegations, there were no facts, either direct or circumstantial, to prove that Scott's race played any role in what she was served or how she was treated by McDonald's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2016.
The Issue Whether Petitioner, Robert F. Cameron, was subjected to an unlawful employment practice by Respondent, Osceola County, based on his disability, race, or national origin in violation of the Florida Civil Rights Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Petitioner brings this action alleging that the County discriminated against him based on his disability, race (white), and national origin (Canadian). Specifically, Petitioner asserts that the County failed to provide him a reasonable accommodation to allow him to participate in the application and selection process for a County job. The County is a political subdivision of the State of Florida and under the governance of the Osceola County Board of County Commissioners. At the final hearing, Petitioner testified that he is a disabled individual with at least seven disabilities. Pertinent to this matter, Petitioner stated that he is partially deaf in one ear which limits his ability to hear.4 In addition, Petitioner relayed that his disability(ies) affect his normal life in that he has frequent medical appointments and requires an increased number of restroom breaks. On October 15, 2019, Petitioner, who is from Canada, applied for the position of Budget Analyst II (the "Analyst Position") with the County. The Analyst Position falls within the County's Office of Management and Budget Department ("OMB"). The OMB is responsible for preparing the County's 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner filed a revised version of his post-hearing submittal on October 9, 2020, which the undersigned considered as Petitioner's Proposed Recommended Order in writing this Recommended Order. 4 At the final hearing, Petitioner initially strenuously objected to identifying his specific disability, asserting that his right to privacy protects him from having to disclose personal medical information, except as requested by a medical professional. annual budget, as well as analyzing and evaluating budget transfers for the County Commissioners. The County initiated the recruitment process for the Analyst Position by posting the opening on the website www.governmentjobs.com on October 14, 2019. Petitioner found the posting on the website and submitted his application through the same. At total of 15 individuals applied for the position, including Petitioner. The application window for the Analyst Position closed on October 21, 2019. Thereafter, the County's Human Resources Department screened the 15 applications to ensure the interested persons met the minimum qualifications for the job. Eleven applicants, including Petitioner, possessed the required qualifications. The Human Resources Department forwarded those 11 applications to the OMB for consideration. The OMB reviewed the 11 applications and selected three individuals to interview. These applicants included Petitioner (a white male), Lizette Rivera (a Hispanic female), and Sean Lower (a white male). Thereafter, the Human Resources Department set up a panel of five County employees to interview the candidates. Petitioner learned that he was being considered for the job on Thursday, October 24, 2019. That morning, the County called Petitioner at his home in Canada to inquire whether he was available for an interview the next day, Friday, October 25, 2019. Damaris Morales, an administrative assistant in the OMB, made the call. This case centers around what was said during that morning phone call. Petitioner and Ms. Morales left the conversation with vastly different impressions of what transpired. The Phone Call According to Petitioner Petitioner testified that Ms. Morales called him at a most inopportune time. His home phone rang at 8:44 a.m. At that moment, Petitioner was rushing out of his apartment to reach a 9:00 a.m. doctor's appointment. In fact, Petitioner had already started his car with an automatic starter, and it was running in his driveway. After he heard his phone ring, however, he turned back to answer the call. Petitioner answered the phone and greeted the caller. The caller identified herself as "Tamaris" from Osceola County.5 Ms. Morales then informed Petitioner that she was calling to set up an interview for the Analyst Position. Petitioner initially expressed to Ms. Morales that her call was "great" news. He then explained that he was running out the door to a medical appointment. Therefore, he asked if she would email him details about the interview, and he would respond to her as soon as he returned home. Ms. Morales informed Petitioner that the interviews would take place the next day (Friday). Petitioner was alarmed at the short notice. He explained to Ms. Morales that he was currently at home in New York state and could not travel to Florida for an in person interview the next day. Ms. Morales replied that she could arrange a telephone interview. Petitioner then asked Ms. Morales when the interview on Friday was scheduled. Ms. Morales relayed that she would email him the specific information when she obtained the time from her manager. Petitioner stated that he would "clear my schedule tomorrow for that interview." Petitioner then signed off saying, "Thank you. I do have to run. Sorry." Ms. Morales hung up the phone first. The conversation lasted 1 minute and 30 seconds. As Petitioner left for his doctor's appointment, he was under the impression that Ms. Morales would email him imminently regarding available times for the Friday telephone interview. The Phone Call According to Ms. Morales At the final hearing, Ms. Morales described a vastly different conversation with Petitioner. As further discussed below, Ms. Morales's 5 At the final hearing, Petitioner testified that he heard Damaris Morales state her name as "Tamaris." initial impressions of Petitioner from that phone call ultimately led the OMB to decide not to interview Petitioner for the Analyst Position. When Petitioner answered the phone, Ms. Morales testified that Petitioner's "aggressive" tone quite startled her. In a "loud" voice, Petitioner declared, "Yeah. What do you want? I don't have time to talk right now. I've got to be somewhere." Ms. Morales was not expecting such an abrupt and jarring reception. After a few seconds of stunned silence, Ms. Morales explained to Petitioner that she was calling about his application for the Analyst Position. Continuing in his harsh tone, Petitioner replied, "I have somewhere I need to be right now. Send me all the information via email. I am in Niagara Falls, New York." Petitioner then hung up the phone first without providing Ms. Morales his availability for a Friday interview. The whole conversation took less than 30 seconds. At the final hearing, in response to Ms. Morales's testimony, Petitioner suggested that she may have overheard an exchange between him and his son, Stewart, with whom he lives. Petitioner explained that, as he was leaving his apartment, his son called out from his bedroom asking whether the bathroom was free. Petitioner yelled back, "What do you want, Stewart? I am leaving." Petitioner explained that his phone may have malfunctioned and engaged Ms. Morales' call without him actually picking up the receiver. Petitioner strongly denied that he directed the comment "what do you want?" at Ms. Morales. Petitioner also theorized that if he spoke in a loud tone with Ms. Morales, it may have been due to his disability. As indicated above, Petitioner testified that he is deaf in one ear. Petitioner explained that Ms. Morales was talking very fast during their phone call. In responding to her questions, Petitioner was not trying to be abrupt or argumentative. However, he was in a rush to reach his appointment and was frustrated at the delay. Continuing with Petitioner's story, after the phone call, as Thursday morning progressed into Thursday afternoon, Petitioner did not receive an email back from Ms. Morales. Therefore, around 2:15 p.m., Petitioner called the County to speak with her. He was forwarded to her office phone, where he left a voicemail. In his message, Petitioner expressed that he was available for an interview any time the next day (Friday). He also left his Skype contact information. Time continued to pass on Thursday. With no response over the next two hours, at 4:14 p.m., Petitioner again called for Ms. Morales. This time, he was able to reach her. Petitioner inquired about his interview time for Friday. Ms. Morales momentarily demurred, telling Petitioner that she had to check with her manager. After several minutes, Ms. Morales came back on the line. She then told Petitioner that the Friday interviews were "full up." When Petitioner asked about an interview on another day, Petitioner claims that Ms. Morales promptly "slammed the phone down in my ear." Ms. Morales, on the other hand, testified that after she informed Petitioner that no interview times were available on Friday, Petitioner got angry and threatened her with a "legal matter." Petitioner then hung up on her. Petitioner was not content to let the matter drop. Therefore, on Friday morning at 9:47 a.m., he emailed the County Manager, Don Fisher, to complain about the County's Human Resources Department and the OMB. In his email, Petitioner summarized the events from the previous day. Petitioner focused on the fact that Ms. Morales told him that she would provide him an interview time. Then, when he contacted her Thursday afternoon, Ms. Morales informed him that the interviews were "full up," and he would not be offered an opportunity to interview for the Analyst Position. Petitioner sent Mr. Fisher follow-up emails at 10:01 a.m. and 10:03 a.m. In the first follow-up email, Petitioner stated: I am disabled and covered under the ADA Act. I make this request for accommodation under the ADA Act. At 10:10 a.m., Petitioner sent an email to another County employee, Maria Colon, the Director of the Human Resources Department and the County's Americans with Disability Act ("ADA") coordinator. In this email, Petitioner stated: You are the designated ADA Act Coordinator, but you are discriminating against me and denying my ADA rights to accommodation under the ACT and Title VII. I formally ask for this interview to be rescheduled and Oscola [sic] County to stop this discrimination. Attached to this email, Petitioner included a copy of his Ontario Disability Support Program Certificate of Disability ("ODSP Certificate"). At the final hearing, Petitioner explained that the ODSP Certificate, which was determined in 2013, is proof of his disability. Petitioner's certificate states: Your file with the Disability Adjudication Unit has been adjudicated and you have been found to be a person with a disability as defined in the Ontario Disability Support Program Act. 1997. At the final hearing, Petitioner expounded on the reasons for his request, explaining that he sought an accommodation to enable him to conduct a telephonic interview because his disability prevented him from driving from Canada to Florida to interview in person. Furthermore, as a disabled person, he needed more time to prepare and participate in the recruitment process. The specific accommodation he desired was to be allowed to interview by telephone on Monday, October 28, 2019. Not hearing a response from Ms. Colon by Friday afternoon, at 3:03 p.m., Petitioner dispatched another email to her. He again attached his ODSP Certificate. In this email, Petitioner wrote that "your staff member Tamaris" refused to schedule an interview and then "hung up the phone on me." Petitioner also repeated that he was "requesting reasonable accommodation for the Budget Analyst II position." Ms. Colon called Petitioner shortly after his second email. During this call, Petitioner informed Ms. Colon that he was disabled, and he needed a telephone interview for the County job opening. Petitioner added that he was located out of state, and he could not travel to Florida in time for an in-person interview. Petitioner further declared that the County was discriminating against him because of his disability and his national origin. Ms. Colon advised Petitioner that she would look into his concerns and get back to him. Petitioner claims that Ms. Colon ended this conversation by slamming the phone in his ear. During this call, despite Ms. Colon's request, Petitioner refused to identify his specific disability. At the final hearing, Petitioner asserted that the law protects those with disabilities from having to disclose their actual medical conditions. He said that, to safeguard their privacy, the disabled do not have to reveal their disability, except to the limited extent necessary to relate the disability to the requested accommodation. At 6:01 p.m. on Friday evening, Ms. Colon emailed Petitioner stating, "Per our phone conversation, I will look into your concerns and get back with you on Monday." By late Monday morning, October 28, 2019, however, Petitioner had not heard from Ms. Colon. Therefore, he sent her two emails. At 11:43 a.m., Petitioner wrote, "When is my interview? I am not available tomorrow." With no response to this first email, at 3:48 p.m., Petitioner wrote, "As per your reply above, you indicated my accommodation request under the ADA and interview time would be dealt with today. It is 4 pm EST. Please respond." Petitioner then signed off, "I am available for an interview 10am to 11 am tomorrow and then on Wednesday, Thursday or Friday." Petitioner received a response from Ms. Colon at 6:10 p.m., Monday evening. In her email, Ms. Colon wrote: I had the opportunity to look into your concerns. To be honest, customer service is very important in the Budget Analyst II role, and we're assessing those skills in every contact with candidates. The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th for the purpose of scheduling an interview. Therefore, the Department has moved forward with other candidates. Petitioner was most displeased at Ms. Colon's email, and at 6:54 p.m., he responded: I did nothing except indicate I was available for an interview. Regardless none of this over-rides the ADA and my rights to employment and accommodation. I will be discussing your actions, the "OMB" in denying my constitutional and ADA rights, my Title VII rights with [a County attorney] tomorrow. If they fail to resolve this, then I will be suing you personally, Tamaris, the OMB and the County on a substantial indemnity basis for well in excess of $500g. Petitioner ended the email with "See you soon in court." Six minutes later, at 7:01 p.m., Petitioner sent another email to Ms. Colon. In this message, Petitioner stated: I must commend you for trying to deflect the egregious violation of my rights through trying to claim my rights to an interview are somehow superceded [sic] by this department withdrawing an interview based on race, geography, nationality and disability … in a call in which this Tamaris said and I quote – "we are full up" … . I asked her to leave my interview time through an email. If that qualifies as "poor customer service" then you have a very BIG legal problem using that as a diversion for blantant [sic] discrimination based on race, color, nationality, and disability. Petitioner ended this email with, "I will be happy to take you to Federal Court not the Courthouse right across the street. See you soon in court." Petitioner wrote Ms. Colon once more at 7:03 p.m. In this email, Petitioner accused Ms. Colon of "a blatant discrimination of interest in applying the ACT. Your superiors told you to deny me my rights under the ADA and you did so." Petitioner then declared that he was going to "sue you personally. … Trust me on that." After Monday, October 28, 2019, Petitioner never heard back from Ms. Morales or Ms. Colon regarding his application for the Analyst Position. Consequently, Petitioner claims that the County, by refusing to respond to his request for a telephone interview, denied him his rights under the FCRA and the ADA. At the final hearing, Petitioner vehemently denied that he was rude to Ms. Morales or during his call with Ms. Colon. Petitioner professed that he was perfectly polite to Ms. Morales. In addition, he asserted that Ms. Morales's testimony that he hung up the phone on her is totally false. Petitioner also contended that he did not threaten Ms. Colon with legal action as a means of intimidation. He was just exercising his rights as a disabled person. Petitioner further charged that the County's excuse for removing him from consideration was based on a misconstrued comment overheard during a brief phone call. Petitioner insists that his single utterance, "What do you want (Stewart)," cannot and should not justify the County's discriminatory action. The County ultimately hired Lizette Rivera for the Analyst Position. Petitioner alleges that the decision to hire Ms. Rivera is evidence of the County's female employees working together to eliminate white, male candidates. Petitioner maintains that Ms. Morales, a Hispanic female, favored another Hispanic (nondisabled) female (Ms. Rivera) for the Analyst Position. Consequently, Petitioner claims that Ms. Morales rigged the process and discriminated against Petitioner. At the final hearing, the County did not dispute that, while the OMB initially considered Petitioner for the Analyst Position, it quickly decided not to interview him for the job. The County also confirmed that the OMB did interview, and ultimately hire, Ms. Rivera to fill the Analyst Position. Regarding the County's decision not to interview Petitioner, after the initial phone call, Ms. Morales testified that she was quite startled by Petitioner's rude and unprofessional conduct. She immediately reported the conversation to her supervisor, Sharon Chauharjasingh, who is the Director of the OMB. Ms. Morales expressed to Ms. Chauharjasingh how shocked she was by Petitioner's behavior. Ms. Morales further relayed that because Petitioner was "in a rush," he did not provide her his availability for a telephone interview. Consequently, she had no information which would allow her to schedule him for an interview on Friday. Ms. Morales's testimony describing the telephone interaction with Petitioner was credible and is credited. Petitioner admitted to parts of Ms. Morales's versions, including that fact that he was in a rush and that he yelled, "what do you want?" Other than the two phone calls with Petitioner on Thursday, October 24, 2019, Ms. Morales was not involved in the OMB's decision not to interview Petitioner or to hire Ms. Rivera. (Those decisions belonged to Ms. Chauharjasingh.) Ms. Morales did not participate on the interview panel for either Ms. Rivera or Mr. Lower. Ms. Morales further testified that at no time during her phone calls with Petitioner did he inform her that he had a disability, or that he needed an accommodation to participate in the interview process. Ms. Chauharjasingh also testified at the final hearing. Ms. Chauharjasingh initially explained that the OMB is tasked with preparing the County's annual budget of approximately $1 billion. The person who fills the Analyst Position will work in the OMB. The duties of the Analyst Position include reviewing the budgets of the different County departments, as well as assisting those departments with budget questions and preparation related tasks. The Analyst Position will also review budgetary impacts and projections, and be prepared to personally discuss these issues with County representatives. In addition, the Analyst Position will interact daily with other staff members and occasionally contact outside companies and the public. Regarding the hiring of Ms. Rivera, Ms. Chauharjasingh disclosed that, because she oversees the OMB, she was responsible for selecting the person to fill the Analyst Position. For this opening, Ms. Chauharjasingh was the individual who narrowed down the applicants to the shortlist of three individuals including Petitioner, Ms. Rivera, and Mr. Lower. In selecting these candidates, Ms. Chauharjasingh looked at each applicant's past experience as a budget analyst, as well as their aptitude to efficiently assume the job duties. Based on their resumes, Ms. Chauharjasingh believed that each finalist was qualified for the Analyst Position. After selecting the three candidates, Ms. Chauharjasingh asked her assistant, Ms. Morales, to call each applicant and set up an interview. Ms. Chauharjasingh asked Ms. Morales to schedule the interviews for either Friday, October 25, 2019, or Monday, October 28, 2019. At the final hearing, Ms. Chauharjasingh represented that the County routinely interviews job applicants by telephone. Ms. Chauharjasingh further testified that the decision not to continue the interview process with Petitioner was hers. Ms. Chauharjasingh recounted that on Thursday morning, October 24, 2019, Ms. Morales came into her office looking "shaken up." Ms. Morales reported that she had just spoken to Petitioner, and he yelled at her and was rude and unprofessional. Ms. Chauharjasingh had never heard of a job candidate reacting the way Ms. Morales described. Ms. Morales has never complained to her about any other applicant. Based on Ms. Morales's interaction with Petitioner, Ms. Chauharjasingh immediately decided to remove Petitioner from consideration for the Analyst Position. She therefore directed Ms. Morales to "move on" from Petitioner and not to communicate with him any further. Instead, Ms. Morales was to only schedule interviews with the other two candidates (Ms. Rivera and Mr. Lower). The County's panel of five interviewers, which included Ms. Chauharjasingh, conducted an in-person interview of Ms. Rivera on Friday, October 25, 2019, at 11:30 a.m. Mr. Lower was interviewed, in person, on Monday morning, October 28, 2019, at 9:30 a.m. Following the interviews, the panel ranked the candidates, and then sent the list to Ms. Chauharjasingh. Ms. Chauharjasingh extended the offer of employment to Ms. Rivera, who was the top-ranked candidate. Ms. Chauharjasingh concluded her testimony by asserting that Petitioner's disability played no role in her decision not to interview him. Ms. Chauharjasingh explained that, at the time she decided to terminate the interview process with him, neither she nor Ms. Morales had any knowledge or information regarding Petitioner's disability. Instead, the sole basis for removing Petitioner from the shortlist was Ms. Morales' interaction with him during her initial phone call. Ms. Chauharjasingh testified that, based on the specific responsibilities of the Analyst Position, personal traits such as good communication skills, decorum, and telephone etiquette are very important. For example, the Detailed Job Posting for the Analyst Position includes a Physical Demand Requirement of "Expressing or exchanging ideas by spoken word or perceiving sound by ear." Consequently, upon hearing Ms. Morales's description of Petitioner's attitude and behavior during the telephone call, Ms. Chauharjasingh decided that the County did not need to consider Petitioner's application any further. In her testimony, Ms. Colon expressed that she had no part in the OMB's decision not to interview Petitioner. She became involved in this matter only after she received Petitioner's email, addressed to her as the County's ADA coordinator, on Friday morning, October 25, 2019. Ms. Colon stated that after she read Petitioner's email, she did not immediately respond because she first wanted to determine what exactly had transpired between Petitioner and Ms. Morales the previous day. Ms. Colon spoke with both Ms. Morales and Ms. Chauharjasingh on Friday. From these conversations, Ms. Colon heard that Petitioner was "rude" during Ms. Morales's first telephone call. Further, Petitioner was so "abrupt" that Ms. Morales was not able to offer him an interview time. Ms. Morales also informed Ms. Colon that Petitioner did not mention a disability or request an accommodation during either of their calls. Regarding her own phone call with Petitioner on Friday afternoon, Ms. Colon described an experience very similar to Ms. Morales's. Ms. Colon testified that the conversation was "not pleasant." As with Ms. Morales, Ms. Colon recounted that Petitioner was "agitated," loud," and "extremely unprofessional." During the exchange, Petitioner also threatened to sue her and the County. Regarding her email to Petitioner on Monday evening, October 28, 2019, in which she wrote that, "The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th," Ms. Colon stated that the decision not to schedule Petitioner for an interview was made on October 24, 2019. Specifically, after talking with Ms. Morales and Ms. Chauharjasingh, Ms. Colon learned that Ms. Chauharjasingh had decided not to interview Petitioner immediately after Ms. Morales reported to her regarding Petitioner's rude and unprofessional interaction with her during their first phone call. As a final witness, Ms. Fatima Lozano testified regarding her participation on the interview panel for the Analyst Position. Ms. Lozano described herself as a Human Resources "generalist" with the County. Ms. Lozano has taken part in a number of interviews of applicants for County employment. She relayed that the County routinely conducts telephonic interviews. Ms. Lozano repeated that, when hiring employees, the department responsible for the position sets up the interviews and selects the winner. For the Analyst Position, the OMB selected the applicants who would interview for the job. Regarding scheduling the interviews for the Analyst Position, Ms. Lozano testified that, on October 21, 2019, she received a calendar invite requesting her availability. The interviews then took place on Friday, October 25, 2019, at 11:30 a.m. and Monday, October 28, 2019, at 9:30 a.m. While the above findings chronical the key aspects of Petitioner's discrimination claim, Petitioner also raised several other complaints against the County. Petitioner was exceedingly frustrated by the County's failure to schedule his interview through the www.governmentjobs.com website. At the final hearing, Petitioner elicited testimony from several County employees that, although the County pays a hefty annual fee to recruit employees through governmentjobs.com, the County only uses the website to solicit applications. Petitioner was "shocked" to learn that the County did not take advantage of the website's functions to schedule interviews with candidates. Petitioner was also "stunned" at the County's attempt to schedule his interview with less than one day's notice. Petitioner found the practice unprofessional and unacceptable. Petitioner represented that the standard process used by governmentjobs.com is to email a notification to the job applicant at least four to seven days prior to the agreed interview time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap), race, or national origin. Instead, the credible evidence establishes that the decision not to interview Petitioner was made without knowledge of his disability prior to his request for an accommodation, and without regard to his race or national origin. The decision to not interview Petitioner was based solely on his own behavior, considered rude and unprofessional, effectively disqualifying him from the job. Accordingly, Petitioner failed to meet his burden of proving that the County committed an unlawful employment practice against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Robert F. Cameron, did not prove that Respondent, Osceola County, committed an unlawful employment practice against him, and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Robert Finley Cameron 1 Churchill Street, Apartment 10 St. Catharines, Ontario, Canada L25 2-P3 C (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office 1 Courthouse Square, Suite 4700 Kissimmee, Florida 34741 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issues are (1) whether the Petition for Relief filed by Petitioner was timely under Section 760.11(7), Florida Statutes, and (2) whether Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment as a retail sales associate in May 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an African American female. During the period of time at issue in this proceeding (i.e., January through May 1998), Petitioner was 49 years old. Respondent is a retail department store chain with stores located throughout Florida, including a store in Oviedo, Florida. Respondent is an employer subject to the Florida Civil Rights Act of 1992. Petitioner's Employment With Respondent On or about January 30, 1998, Petitioner was hired by Respondent to work as a retail sales associate in Respondent's Oviedo store. She was originally assigned to work in the women's clothing department. Petitioner was interviewed and hired by Heidi Jensen, a white female. Ms. Jensen was the assistant sales manager responsible for the women's clothing department, and was Petitioner's direct supervisor throughout the course of Petitioner's employment. Petitioner was hired as a part-time employee at a rate of $9.00 per hour. As a part-time employee, she worked approximately 20 hours per week. Petitioner's schedule was flexible; she worked eight hours on some days and four hours or less on others. She was typically scheduled on the closing shift (i.e., nights), rather than the opening shift. On February 7, 1998, Petitioner signed a certification indicating that she had read and agreed to abide by Respondent's work rules and policies. Those rules include the following directive, hereafter referred to as "Work Rule 10": Associates must exhibit positive behavior toward their job, Management, supervisors, and co-associates in all of their actions and speech. Customers must always be treated courteously. Anything to the contrary will not be tolerated. On February 8, 1998, Petitioner attended a general orientation at which the work rules and policies were discussed. That orientation was also attended by other recently-hired employees, including non-African American employees. Petitioner received additional training from Respondent throughout her employment, including customer service and sales training and direction for handling merchandise returns. That training was also provided to other employees, including non- African American employees. Petitioner never received formal training on how to "open" the store. However, as noted above, Petitioner typically worked during the closing shift rather than the opening shift. Slightly more than a month into her employment, Petitioner's co-workers began complaining about her unprofessional behavior. The complaints alleged that Petitioner yelled at co-workers; that she initiated arguments with co- workers in front of customers regarding who should get credit for the customer's purchases; that she referred to the customers in the woman's department (which caters to larger women) as "fat pigs"; that she stole customers from her co-workers; that she referred to some of her co-workers as "vultures" and others as "bitches" or "wolves," often in front of or within "earshot" of customers; and that she generally upset or harassed co-workers through her attitude and derogatory comments. The complaints came from eight different co-workers, at least one of whom was an African American female. The complaints were made in writing by the co-workers, typically through signed, hand-written statements given to Ms. Jensen or the store manager. Petitioner denied making any of the statements or engaging in any of the conduct alleged in the complaints. In response to the complaints, she took the position that she was being "singled out" by her co-workers because her aggressive tactics made her a more successful salesperson than most of her co-workers. Despite Petitioner's denials, Ms. Jensen determined that disciplinary action was appropriate based upon her investigation of the complaints. Ms. Jensen gave Petitioner a verbal warning "concerning using a positive attitude towards merchandise and customers" on March 7, 1998, and she gave Petitioner a formal written warning for her lack of positive attitude towards customers and co-workers on March 19, 1998. Both warnings cited Work Rule 10 as having been violated. Despite the warnings, Petitioner's conduct continued to generate complaints from her co-workers. She received another verbal warning from Ms. Jensen on April 17, 1998, and she received a formal written warning from the store manager on April 22, 1998. Again, the warnings cited Work Rule 10 as having been violated. Petitioner continued to deny any wrongdoing. She again claimed that she was being "targeted" by her co-workers because of their "jealousy and envy" over her success as a salesperson. The April 22, 1998, written warning stated that "[i]f there is one more report of negativity or verbal abuse of customers or associates, [Petitioner] will be terminated." It also enumerated Respondent's "expectations" with respect to Petitioner's conduct, including a requirement that Petitioner "never confront an associate in front of a customer" (emphasis in original). At some point after the April 22, 1998, written warning, Petitioner was transferred from the women's department to the casual department to give her a "clean slate" with her co-workers. Despite the transfer, Petitioner's co-workers continued to complain about her behavior. The complaints were of the same nature as the complaints discussed above, e.g., stealing sales from other co-workers and initiating confrontations with co-workers over customers in the customer's presence. On May 22, 1998, Petitioner and a co-worker, Brenda Ross, "had words" over a customer. When confronted about the incident by Ms. Jensen, Petitioner "was loud and aggressive" towards her. As a result of this incident and the prior warnings, Ms. Jensen recommended that Petitioner's employment be terminated. The store manager accepted Ms. Jensen's recommendation, and, Petitioner was terminated on May 22, 1998. Thus, the term of Petitioner's employment with Respondent was less than four months. After she was fired, Petitioner returned to her work station to retrieve her belongings. While doing so, she confronted Ms. Ross and called her a "lying bitch" (according to Petitioner's own testimony at the hearing) or something similarly derogatory.1 There are no videotapes of the incidents described above. None of the co-workers who reported the incidents testified at the hearing. Nevertheless, the co-worker's contemporaneous hand-written reports of the incidents which were received into evidence (Respondent's Exhibits 21-30) are found to be credible based upon their general consistency and the corroborating testimony of Ms. Jensen at the hearing. By contrast, Petitioner's testimony regarding the incidents was not credible. There is no credible evidence to support Petitioner's allegations that she was denied the opportunity to file complaints against her co-workers. Nor is there any credible evidence that Petitioner did file complaints (alleging discrimination or anything else) which were ignored by Respondent's management. By all accounts, Petitioner was a good salesperson; her sales per hour were high and, on several occasions, they were the highest in the department where she was working. Ms. Jensen complemented Petitioner on at least one occasion for her high level of sales. Petitioner was also punctual and had a good attendance record. She was on track to receive a pay increase at her next review. However, as a result of the unprofessional behavior detailed above, she was fired prior that review. Petitioner is currently unemployed. She has not held a job since she was fired by Respondent in May 1998. However, she has only applied for four or five other jobs since that time. Petitioner's Discrimination Claim Petitioner first contacted the Commission regarding her allegation that Respondent discriminated against her on or about June 29, 1998. On that date, she filled out the Commission's "intake questionnaire." On the questionnaire, she indicated that she had sought assistance from attorney Anthony Gonzales, Jr. (Attorney Gonzales) regarding the alleged discrimination by Respondent. Petitioner also listed Attorney Gonzales as her representative on the "intake inquiry form and complaint log" completed on or about July 10, 1998. Petitioner consulted with Attorney Gonzales in April 1998, prior to her termination. Although Petitioner claimed at the hearing that Attorney Gonzales did not agree to represent her beyond the initial consultation, Petitioner provided the Commission a copy of Attorney Gonzales' business card and a copy of the check by which Petitioner paid Attorney Gonzales' consultation fee with the Commission's intake documents. Based upon those documents, the Commission apparently (and reasonably) assumed that Attorney Gonzales was Petitioner's attorney because it subsequently directed various letters to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. Petitioner filed her formal charge of discrimination on November 9, 1998. The charge did not reference Attorney Gonzales. Nevertheless, on December 7, 1998, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address confirming receipt of the charge of discrimination. The record does not include any correspondence from Attorney Gonzales to the Commission in response to the December 7, 1998, confirmation letter. However, Attorney Gonzales continued to receive correspondence from the Commission regarding Petitioner's charge of discrimination after that date. On February 2, 1999, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Esq." at Attorney Gonzales' address indicating that Petitioner's charge of discrimination had been pending for over 180 days and identifying the options available to Petitioner. The letter was accompanied by an "election of rights" form which was to be completed and returned to the Commission. Attorney Gonzales apparently forwarded the form to Petitioner because Petitioner completed and signed the form and returned it to the Commission on June 17, 1999. This strongly suggests that there was an attorney-client relationship between Attorney Gonzales and Petitioner at the time. Indeed, if there was no attorney-client relationship, either Petitioner or Attorney Gonzales would have informed the Commission in connection with the return of the form that Attorney Gonzales was not representing here. However, neither did. The record does not include any additional communications between the Commission and Petitioner and/or Attorney Gonzales between June 1999 and August 2001. Notably absent from the record is any notice to the Commission that Attorney Gonzales was no longer representing Petitioner. On August 31, 2001, the Executive Director of the Commission issued a "no cause" determination on Petitioner's charge of discrimination. On that same date, the Clerk of the Commission sent notice of the determination to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. The notice stated that "[c]omplainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE" (emphasis supplied and capitalization in original), and further stated that the claim "will be dismissed" if not filed within that time. Attorney Gonzales contacted Petitioner by telephone after he received the notice of determination. The record does not reflect the date of that contact. However, Petitioner testified at the hearing that Attorney Gonzales informed her during the telephone call that the deadline for requesting a hearing had not yet expired. Accordingly, the contact must have occurred prior to October 5, 2001, which is 35 days after August 31, 2001. Despite the notice from Attorney Gonzales, Petitioner did not immediately file a Petition or contact the Commission. She did not contact the Commission until October 16, 2001. On that date, she spoke with Commission employee Gerardo Rivera and advised Mr. Rivera that Attorney Gonzales was not representing her. Mr. Rivera indicated that the Commission would send an "amended" notice directly to her. An "amended" determination of no cause was issued by the Executive Director of the Commission on October 26, 2001. On that same date, an "amended" notice of determination was mailed to Petitioner. Included with the "amended" notice was a blank petition for relief form. Petitioner completed the form and mailed it to the Commission. The Petition was received by the Commission on November 28, 2001,2 which is 33 days after the date of the "amended" determination, but 89 days after the date of the original August 31, 2001 determination. Mr. Rivera's affidavit (Exhibit P1) characterized the mailing of the original determination to Attorney Gonzales as "our [the Commission's] error" and a "mistake." The preponderance of the evidence does not support that characterization. Specifically, the record reflects that it was Petitioner who gave the Commission the impression that Attorney Gonzales was representing her, and neither Petitioner nor Attorney Gonzales did anything to advise the Commission otherwise during the two and one-half years that the Commission investigated Petitioner's charge of discrimination and sent letters to Attorney Gonzales on Petitioner's behalf. Indeed, Petitioner testified at the hearing that the October 16, 2001, conversation with Mr. Rivera was the first (and only) time that she informed the Commission that Attorney Gonzales was not representing her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 December, 2002.
The Issue The issues are: (1) Whether Petitioner's Amended Charge of Discrimination should be dismissed as time barred; and Whether Petitioner, Susan Indish-Militello (formerly known as Susan Indish and referred to herein as “Petitioner”) was discriminated against in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of the proceeding, the following findings of fact are made: Petitioner, Susan Indish-Militello, is a resident of Marion County, Florida. Respondent, Pinellas Suncoast Transit Authority ("PSTA"), is a transit agency located in Pinellas County, Florida and is an employer under the FCRA. Petitioner was employed by Respondent, as a bus operator, beginning in 1989 until September 8, 1994. Petitioner was involved in a work-related bus accident on May 2, 1994, and as a result, she suffered neck and back injuries. Petitioner’s injuries were evaluated by Petitioner’s treating physician Dr. Jeffrey Tedder on May 4, 1994. On May 19, 1994, Dr. Tedder issued a note releasing Petitioner to return to full work duty on May 29, 1994. Petitioner did not to return to work on May 29, 1994, and utilized vacation and sick leave for approximately the next three weeks. During this time, a second medical evaluation was performed by Dr. Joseph Sena. Dr. Sena issued a report on June 9, 1994, stating that he was unable to substantiate any objective findings which would warrant Petitioner being out from work. Respondent informed Petitioner that she had been released to work by both Dr. Tedder and Dr. Sena. Petitioner returned to work in late June 1994 and worked until July 18, 1994. Petitioner exhausted her sick leave on July 19, 1994. When Petitioner then again failed to return to work, on August 12, 1994, Respondent’s General Counsel sent Petitioner a letter by certified mail advising her that all her sick leave had been exhausted and that in accordance with the Family and Medical Leave Act and PSTA’s Labor Agreement with the bus operators’ union, Petitioner was required to provide medical certification establishing a qualifying reason for leave within 15 days. The letter also required Petitioner to provide an expected date of return to work. Finally, the letter stated that failure to provide medical certification would subject Petitioner to discipline up to and including termination. The Labor Agreement between the PSTA and its employees is applicable to Petitioner. Petitioner acknowledged that she received a copy of the Labor Agreement. Article 15 of the Labor Agreement, titled "Leave Without Pay" provides in pertinent part the following: Section 8. Failure to return to work at the expiration of approved leave shall be considered absence without leave and grounds for dismissal. * * * Section 13. Leave of Absence - Illness * * * B. All leaves of absence without pay for illness shall be supported and confirmed by a medical certificate executed by a doctor. Petitioner forwarded to Respondent a note dated August 17, 1994, from Rev. Dona Knight, a minister, which claimed that Petitioner was “in extreme distress with sucidal [sic] tendencies and sevare [sic] depression.” This document, however, did not state an opinion regarding Petitioner’s ability to work nor did it provide an expected date of return. In response to the aforementioned note, Respondent’s benefits specialist informed Petitioner that the document was inadequate and that she was required to provide proper medical certification. Notwithstanding this request, Petitioner failed to provide any medical documentation indicating a qualifying reason for her unexcused absence from work or an expected date of return. As a result of Petitioner's failing to provide the required documentation, Respondent terminated Petitioner's employment on September 8, 1994, in accordance with the Labor Agreement and PSTA attendance policy. After her termination, Petitioner filed a grievance disputing the termination, and a first-step hearing was held before PSTA’s deputy of operations, Ed King. Mr. King denied Petitioner’s grievance and upheld the termination. Thereafter, Petitioner filed a second-step grievance, and a hearing was held before PSTA's executive director, Roger Sweeney, on October 17 and October 31, 1994. At the hearing, Petitioner did not provide any medical documentation or request any reasonable accommodation for any alleged handicap or disability. Therefore, Mr. Sweeny denied the second step grievance, and the termination was again upheld. Following the grievance hearings, Petitioner filed a request for arbitration in accordance with the PSTA's Labor Agreement. An arbitration hearing was held on October 11, 1996, at which Petitioner was represented by counsel. After the hearing, the arbitrator found that Respondent had just cause to terminate Petitioner based on her failure to provide medical documentation for her continued absence from work. After being terminated, Petitioner also filed a claim for unemployment compensation which was denied by a claims examiner on or about October 6, 1994. Petitioner then appealed this decision and a hearing on the appeal was held by an Appeals Referee, where Petitioner was again represented by counsel. Based on the evidence presented at the hearing, the Appeals Referee found that given the length of time Petitioner was absent from work, it was not unreasonable for Respondent to expect her to provide medical certification for her continued absence. The Appeals Referee further found that the statement from Rev. Knight was not a medical document and gave no assessment of Petitioner’s ability to resume her duties as a bus driver. The Appeals Referee concluded that Petitioner’s failure to provide the requested medical documentation was an intentional violation of her duties and obligations to Respondent and amounted to misconduct connected with work and, thus, found that Petitioner was properly disqualified from receipt of unemployment compensation benefits. Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations on or about July 11, 1995, alleging that Respondent had discriminated against her based on her handicap. The Charge of Discrimination did not give any "particulars" regarding the alleged discrimination, but indicated that the most recent discrimination took place on September 8, 1994. On or about July 20, 1999, Petitioner filed an Amended Charge of Discrimination, again alleging that Respondent had discriminated against her based on her disability. In the Amended Charge, Petitioner alleged that on September 8, 1994, she was terminated as a bus driver. She further noted that the "most recent or continuing discrimination took place" on September 8, 1994. Under the section of the charging document referred to as "Discrimination Statement," Petitioner stated the following: I have been discriminated against because of my handicap. I believe my rights have been violated under the American with Disabilities Act and the Florida Civil Rights Act of 1992 as amended. 1. I was not reasonably accommodated. By August 12, 1994, and prior to her termination, Petitioner had relocated her residence to Marion County, Florida. Petitioner presented no evidence to establish that she suffered from any handicap or disability under the terms of the FCRA, that she required or requested reasonable accommodations to perform her duties, or that her termination by Respondent was based upon or influenced by any alleged disability.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 25th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan Indish-Militello 2835 North Seneca Point Crystal River, Florida 34429 Alan S. Zimmet, Esquire Elita D. Cobbs, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was terminated from his position with Respondent as a warehouse supervisor on or about August 9, 2002, on the basis of his race (African-American), in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following Findings of Fact are determined: Respondent, Heritage Paper Company, Inc. (Respondent), is an employer as that term is defined under the Florida Civil Rights Act of 1992 (FCRA). Respondent is a wholesale distributor of paper and plastic products. Petitioner, Alonzo C. Brown, is an African-American male and is a member of a protected class. Petitioner was employed in the warehouse at Respondent's Orlando facility from 1998 until he was terminated on or about August 9, 2002. Dan Patterson ("Patterson"), who was the general manager at the Orlando facility during the relevant time period, supervised Petitioner throughout his employment with Respondent. Patterson made the decision to hire Petitioner, made the decision to promote Petitioner to warehouse supervisor, and made the decision to terminate Petitioner's employment. In November 1999, Petitioner was officially promoted from warehouseman to warehouse supervisor. Petitioner's job duties as warehouse supervisor included supervising the drivers, receiving inventory, putting away inventory, pulling orders, and ensuring that the trucks were loaded. Petitioner was responsible for assigning work to his assistants, ensuring that the runs were pulled, and ensuring that the merchandise ordered by customers was actually on the trucks for delivery. He was also responsible for the overall condition of the warehouse. Petitioner's performance deteriorated during approximately the last five months of his employment. When Petitioner got behind in the warehouse, Patterson assisted him and even hired an assistant to help Petitioner in the warehouse with inventory control and other assistance, where necessary. At the final hearing, Petitioner testified that he was discriminated against based on his race in retaliation for filing a workers' compensation claim and for disagreeing with his supervisor's instruction to put matches on a truck during a fire inspection. Petitioner was responsible for ensuring that the trucks left on time in the morning and for pulling the runs the previous afternoon. Even though an assistant was hired to help Petitioner in the warehouse at times, Petitioner refused to assign tasks to his assistant. Patterson wrote a note to Petitioner on May 1, 2002, telling Petitioner that he could not send items to the customer, NSC Northport, without matching up purchase order numbers. NCS Northport had very strict delivery requirements and would refuse delivery if Respondent did not comply with their delivery procedures. The evidence demonstrates that Patterson notified Petitioner on May 1, 2002, that Respondent's procedure with regard to NSC Northport was not followed. Although Petitioner introduced testimony that he did not write the information on the NSC Northport invoice, Patterson reasonably believed that it was Petitioner's handwriting and testified that Petitioner never informed him that he did not write the information on that invoice. Further, Marissa Moore, Petitioner's own witness, identified the handwriting as Petitioner's. When problems in the warehouse first arose, Patterson spoke with Petitioner regarding Respondent's policies and procedures for the warehouse. Patterson wrote another note to Petitioner on May 13, 2002, regarding excessive overtime and the importance of having runs pulled the previous afternoon to prevent overtime. Patterson wrote a third note to Petitioner and his assistant, Keynon Turner, on June 27, 2002, reiterating the importance of having the runs pulled in the afternoon and reminding them that the runs must be pulled by 4:00 p.m. Petitioner's explanation for the overall condition of the warehouse from May through August 2002 is not credible. Bob Purser, Sr., Respondent's chairman, CEO, and founder testified that in a conversation with Patterson, he told him that if Petitioner was unable to keep the warehouse organized, minimize the overtime, and get the trucks out on time, then they would have to get someone in the warehouse who would be able to do so. When Purser found out that incorrect merchandise was delivered to customers, he told Patterson to personally review the orders before the trucks were loaded. Purser visited the warehouse where Petitioner was employed prior to his termination and found that the warehouse was in disarray. He observed the aisles were blocked with merchandise and that the forklifts were unable to move up and down the aisles. Denis Nieves, the current warehouse supervisor for Respondent's Orlando facility, was hired on August 12, 2002, three days after Petitioner's employment was terminated. When he was hired, the warehouse was disorganized and cluttered, inventory blocked some of the aisles, the bay doors, and the exits and that it was sometimes difficult to locate inventory. It took him approximately six to eight weeks to reorganize the warehouse, unblock the aisles, put the inventory on racks, and unblock the bay doors and the exits. Respondent's Equal Employment Opportunity policy states that Respondent will provide equal employment opportunity to all qualified employees and applicants for employment regardless of race, color, sex, age, religion, national origin, handicap, marital status, and status as a disabled veteran or veterans of the Vietnam era. This policy was in effect when Petitioner was hired, and he received a copy of Respondent's employee handbook at the time of his hire, which contained the Equal Employment Opportunity policy prohibiting all types of unlawful discrimination. Petitioner knew of Respondent's Equal Employment Opportunity policy. He was aware of the procedures for mailing a complaint about racial discrimination and/or harassment. Respondent also maintained an open-door policy where employees could speak with Purser regarding any perceived problems. Petitioner was aware of this open-door policy. Other employees took advantage of Respondent's open-door policy to address their concerns with Patterson and/or Purser. Petitioner never complained to Purser about Patterson's alleged discriminatory treatment. Purser confirmed that Petitioner never addressed any concerns about race discrimination or any retaliatory actions by Patterson with him. Petitioner testified that he did not feel that he was ever discriminated against at any time during his employment with Respondent, except when Patterson terminated his employment. Although Petitioner raised various instances of perceived unfairness throughout his employment with Respondent, such as being paged to the front office and having his uniform "stripped" from him, he testified that the only point he believed he was discriminated against because of his race was when Patterson terminated his employment. Petitioner's witnesses, Ralph McDaniel and Ricky Vaughn, admitted that they never noticed any discriminatory acts or racial inequalities against anyone while they were employed with Respondent. Moore testified that she never heard any discriminatory comments about Petitioner. Andrew Mitchell testified that he never noticed any discriminatory acts during his employment with Respondent. Petitioner's only other witness, Kenyon Turner, testified that the only perceived discriminatory actions he experienced while employed at Respondent was Patterson's "getting mad and cursing [him] out every once in a while." When asked if Patterson cursed at others as well, Turner answered affirmatively stating, "[o]f course he cursed out the other people that was there," meaning all employees, regardless of race. This does not constitute evidence of racial discrimination. Purser testified that his company does not discriminate against its employees on the basis of race and Patterson testified that he did not consider Petitioner's race in making the decision to terminate his employment. Through Mitchell's testimony, Petitioner attempted to establish that he was a "good employee" and that he was a "capable and knowledgeable" warehouse supervisor, but offered no additional evidence demonstrating that he was doing a good job. The greater weight of evidence supports the fact that Patterson made the decision to terminate Petitioner's employment based on the continuing problems in the warehouse and a load factor decline of approximately 22 percent. The load factor is a percentage used to determine how many customer orders are being accurately filled. At the time of Petitioner's termination, he was earning $11.72 per hour. Petitioner testified that he did not begin looking for work until the first part of 2003. Petitioner worked sporadically for Florida Courier and that he earned approximately $11,000.00 in 2003. Petitioner did not work many hours and did not seek alternative employment during the summer months. Petitioner is also a full-time pastor, and his church pays his mortgage payment, which is approximately $1,000.00 per month. Petitioner testified that he has submitted "a couple of applications" to prospective employers, but has not really been interested in working for someone else.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alonzo C. Brown 7230 Plantain Drive Orlando, Florida 32818 Robert T. Devine, Esquire Alva L. Cross, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
