The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and if so, what relief should Petitioner be granted.
Findings Of Fact Respondent manufactures valves for the safe transportation of hazardous chemicals on tanker-trailers. Respondent is headquartered in the Vero Beach area; specifically, the Gifford community, which is a predominately African-American community. Respondent employs a significant number of employees from the Gifford community.1/ Petitioner is an African-American male who was employed by Respondent from approximately February 2012 until his termination in September 2013. At the time of his termination, Petitioner was employed by Respondent as an assembly technician. Petitioner was supervised by Darrall Holloway, an African- American male. The incident giving rise to Petitioner’s termination involved a physical altercation between two of Respondent’s employees, Jormonte Hunter (African-American male) and Mike Alvarado (Hispanic male) on September 25, 2013. The physical altercation followed approximately two months of arguing between Mr. Hunter and Mr. Alvarado over a female employee of Respondent. Mr. Holloway and his supervisor, John Brennan (Caucasion male), learned of the ongoing dispute between Mr. Hunter and Mr. Alvarado sometime during the afternoon working hours of September 25, 2013. That same afternoon during working hours, Mr. Holloway and Mr. Brennan met with Mr. Hunter and Mr. Alvarado and told them to cease their bickering, and to avoid any future confrontations with each other, on or off company property. That same afternoon during working hours, Mr. Holloway and Mr. Brennan also met with Petitioner and two other African- American male employees (Chris Joseph and Marcus Melbourne). During this meeting, Petitioner, Mr. Joseph and Mr. Melbourne were directed not to allow the situation between Mr. Hunter and Mr. Alvarado to escalate, on or off company property. Petitioner, Mr. Joseph and Mr. Melbourne were further warned that if the situation between Mr. Hunter and Mr. Alvarado escalates, on or off company property, “actions will be taken.” Nevertheless, Petitioner, Mr. Joseph, Mr. Melbourne, Antonio Wallace (African-American male), and Mr. Hunter left work after 4:00 p.m., on September 25, 2013, and drove to Mr. Alvarado’s apartment complex. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter went to Mr. Alvarado’s apartment knowing there was going to be a physical altercation between Mr. Alvarado and Mr. Hunter. After arriving at Mr. Alvarado’s apartment complex, Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter exited their vehicles. Mr. Hunter then walked toward Mr. Alvarado’s apartment, followed by Petitioner, Mr. Joseph, Mr. Melbourne, and Mr. Wallace. Moments later, Mr. Alvarado opened his apartment door, some words were exchanged between Mr. Alvarado and Mr. Hunter, and the physical altercation ensued. Petitioner and Mr. Wallace instigated and witnessed the physical altercation, and did nothing to try and stop it. Mr. Joseph and Mr. Melbourne also witnessed the physical altercation, and did nothing to try and stop it. The physical altercation between Mr. Hunter and Mr. Alvarado lasted a matter of seconds, resulting in Mr. Hunter slamming Mr. Alvarado’s face to the ground, causing Mr. Alvarado to suffer physical injuries to his face. The next day, September 26, 2013, Mr. Alvarado arrived to work with his face badly injured as a result of the altercation. On September 26, 2013, Mr. Holloway, Mr. Brennan, and Mr. Girard, the president of the company, learned of the physical altercation that had occurred between Mr. Alvarado and Mr. Hunter at Mr. Alvarado’s apartment complex the day before. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, Mr. Hunter, and Mr. Alvarado were all suspended pending an investigation by Respondent. Over the next few days, Respondent conducted an investigation. Following its investigation, Respondent terminated Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph. Mr. Girard made the ultimate decision to terminate Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph.2/ Petitioner was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting on September 25, 2013; he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado; and he was employed by Respondent for only one year and eight months prior to his termination, during which his job performance was, at times, below expectations. Mr. Hunter was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he was directly involved in the physical altercation with Mr. Alvarado. Mr. Wallace was terminated because he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado, and he was employed by Respondent for only six months prior to his termination. Mr. Joseph was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he witnessed the physical altercation between Mr. Hunter and Mr. Alvarado. Mr. Alvarado was not terminated because he was the victim of the physical altercation, and the physical altercation occurred at his residence. Mr. Melbourne was not terminated because he did not instigate the physical confrontation between Mr. Hunter and Mr. Alvarado, and he was a long-term and model employee of Respondent prior to the September 25, 2013, incident.3/ Following his termination, Respondent replaced Petitioner with Shaunte Collins, an African-American male. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, non- discriminatory reasons having nothing to do with his race. Petitioner’s charge of race discrimination is based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for his firing are a mere pretext for intentional race discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of December, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2014.
The Issue Whether Respondent, Wal-Mart Stores, East, LP (Respondent or Wal-Mart), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Mary L. Smith (Petitioner), based upon Petitioner’s race, age, or in retaliation for her participation in protected activity.
Findings Of Fact As she describes herself, Petitioner, Mary L. Smith, is an 82-year-old, Black American woman. Petitioner has worked as an associate for Walmart since 2004 in Store 488 located in Quincy, Florida. During her employment with Walmart, Petitioner received training about Walmart’s core beliefs and open door policies. Throughout her employment at Walmart, Petitioner received wage increases and was not disciplined for the two incidents related to Petitioner’s Complaint, as further detailed below. In October 2014, while helping unload freight, Walmart Assistant Manager Saundra Davis saw Petitioner yelling at two other Walmart associates. Ms. Davis instructed Petitioner to go to the office, but Petitioner refused to do so. Next, Ms. Davis instructed Petitioner to clock out for the remainder of her shift. During the discussion, Petitioner informed Ms. Davis that she would leave the store only if she were escorted by police. Petitioner did not clock out. Rather, she refused to leave and completed her shift. Assistant Manager Davis considered Petitioner’s refusal to follow instructions an act of insubordination. Petitioner, however, was not reprimanded for this incident. Subsequently, in January 2015, all associates, including Petitioner, were instructed to go retrieve shopping carts left in the parking lot by customers. Petitioner refused to comply with that request. Instead, Petitioner became visibly upset and told everyone that she would not go outside. Afterward, Petitioner reiterated that she was not going to do as instructed by management. Once again, Ms. Davis instructed Petitioner to clock out for the remainder of her shift, but Petitioner refused. This time, Walmart management called police to escort Petitioner out of the store. As before, Petitioner was not reprimanded for the January 16, 2015, incident. Petitioner never complained to Walmart management that she was being discriminated against based on her race, age, or membership in any other protected category. Assistant Manager Davis denied harboring any discriminatory animus towards Petitioner, and the evidence did not otherwise demonstrate any such animus on the part of Ms. Davis or Walmart.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 25th day of March, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2016.
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, 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 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2007.
The Issue The issue for determination in this proceeding is whether Respondent used racial epithets in two separate incidents at school and, if so, whether Respondent should be dismissed or otherwise disciplined for such conduct.
Findings Of Fact Petitioner is the Superintendent of Schools for the Broward County School Board (the "School Board"). Petitioner is statutorily required to recommend the placement of School Board personnel and to enforce employee compliance with applicable statutes, rules, and regulations. Respondent is employed by the School Board, pursuant to the provisions of a professional services contract. Respondent is an art teacher at Markham Elementary School in Broward County, Florida ("Markham"). Respondent was so employed for the school year 1991-92, but was suspended without pay on or about June 2, 1992. Markham is predominantly African American. It is one of several pilot schools in Broward County, Florida required by the county to provide an African American Infusion Program and a Multi-cultural Department. The program includes a curriculum designed to make children aware of who they are, their background, and current events. Racial tensions exist at Markham between "clicks" in faculty, staff, and students and between faculty and students. The principal at Markham admonished Ms. Randy Laruso and Ms. Mary Washington, as leaders of the faculty clicks, for engaging in such activities. The principal prohibited racially divisive behavior and established a committee, including Ms. Laruso and Ms. Washington, to improve cohesiveness among the faculty. Racial tensions at Markham are so bad that some faculty members are not comfortable with the situation and others, including Ms. Laruso, have transferred. Respondent is an experienced, competent art teacher. Respondent has been a teacher for 23 years. Seventeen of those years have been in Broward County. Respondent spent the last six years teaching in Broward County. Respondent's evaluations for the past six years in Broward County have been satisfactory with no notations that she needed any improvement. Respondent is considered by her principal to be very knowledgeable and competent as a teacher. Respondent was conducting an art class for fifth grade students on December 5, 1991. The class included students from Ms. Mary Washington's fifth grade class as well as three handicapped students from Ms. Rosalyn Samuelsen's class who had recently been mainstreamed. One of the students from Ms. Washington's fifth grade class was Deshanda Henley. Plasticine, a clay that does not harden, was on the floor. Respondent asked Miss Henley to clean up the clay. She refused and asked Respondent "why white people don't like black people." Respondent did not answer but went to the back of the classroom, got a broom and dust pan, handed them to Miss Henley and again asked her to clean up the clay. Miss Henley refused explaining that "you don't make those crackers clean up the clay." When Miss Henley refused Respondent's request again, Respondent said, "The reason white people don't like black people is because they ain't nothing but a bunch of nasty niggers." Miss Henley became angry and called Respondent a "white cracker." The three students from Ms. Washington's class heard the racial epithet used by Respondent. The three students from Ms. Samuelsen's class were at an adjacent table and did not hear the slur. The teacher who was substituting for Ms. Washington on December 5, 1991, gathered Ms. Washington's students when Respondent's class was over. When they were back in Ms. Washington's classroom, Miss Henley reported the racial epithet to the substitute teacher in front of the entire class. There was a discussion among the entire class about the accusation. The substitute teacher sent Miss Henley to the administrative office to report the incident to the principal. Later that day, Miss Henley came to Respondent's class and apologized for calling her a "white cracker." The principal did not hear of the incident until the following Spring. Respondent continued teaching at Markham without incident for the next several months. In January or February, Miss Henley related the incident to Ms. Washington for the first time. Ms. Washington wrote a letter to the principal asking her to come to her class and talk to the students about the allegation that Respondent used a racial epithet in class. The principal went to Ms. Washington's class, listened to the accusations and student concerns, and told them she would look into it. In early March of 1991-92, Mr. Roderick Lester, an interim teacher at Markham that year, was holding a resource class in which he had sixteen or seventeen of Ms. Washington's students. During that class, Miss Henley raised her hand and related the incident to Mr. Lester. Mr. Lester took the students back to their class and informed Ms. Washington of Miss Henley's allegations. Ms. Washington held another discussion with her class regarding the incident. One of the students who heard the racial slur on December 5, 1991, told her parents about the incident for the first time in early March, 1992. When her parents learned that the incident had been reported to the administration on December 5, 1991, and that no action had been taken since then, they were angered. On March 3, 1992, the parents went to Markham to confront Respondent. The student's mother told Respondent that if Respondent used a racial slur again, "I'm going to jack you up." Respondent reported the incident to the front office. The principal was in a meeting off campus. Ms. Laruso was an acting administrator that day. Ms. Laruso called the police and reported the threat. When the principal returned to the campus, she was informed of the day's events. The principal called the parents who had threatened Respondent and asked them to return to the school. Respondent was not invited to meet with the principal or the parents. Nor was she contacted or otherwise advised that the meeting was taking place. The principal never contacted Respondent to ask her version of what happened in the classroom on December 5, 1991. The incident was reported in the local press and created much public attention. The principal contacted the School Board's special investigative unit ("SIU") on March 11, 1992, and requested an investigation into Miss Henley's allegations concerning the incident on December 5, 1991. Sandra Hart, an SIU investigator, conducted the investigation. Respondent was notified that an investigation had been requested concerning the incident on December 5, 1991. The investigation was expanded to include alleged use of racial slurs in front of administrative staff on March 23 and 24, 1992. Respondent was not formally notified until several months later of the additional allegations. By letter dated May 21, 1992, Respondent was suspended from her employment with pay and later suspended without pay. The additional allegations were raised in connection with a demonstration project promised by a representative from the Polaroid Company ("Polaroid") scheduled for March 24, 1992. Respondent was responsible for setting up a class to be put on by the Polaroid representative. Respondent arranged for 50 participants to take the class. For $15, each participant received three continuing education credits and a free Polaroid camera. On the afternoon before the camera class was to begin, Respondent was informed by a telephone call from one of her supervisors that the Polaroid representative would not attend the class unless his round trip air fare was paid. Respondent's supervisor stated that such an arrangement was not financially feasible and instructed Respondent to cancel the class and refund the moneys to the participants. After the telephone conversation, Ms. Lois Davis, the office manager and a registered participant in the cancelled class, asked what happened. Respondent advised Ms. Davis that the camera representative was not going to come. Respondent explained that "he's getting really niggly because he won't pay his plane fare." On March 24, 1992, Respondent was asked by another staff member why the demonstration class had been cancelled. Respondent stated that the Polaroid representative had refused to come unless his air fare was paid. The term "niggle" means to pay too much attention to detail. A "niggler" is one who niggles. Niggle is a word that is commonly used in Britain. Respondent's mother is British. Her husband is Australian. Respondent has visited her family in Britain and Australia on several occasions during the last few years. Respondent frequently uses the terms "niggle", "niggly", or "niggler" at school to describe her teenage daughters to other staff members. Respondent's use of the terms "niggle", "niggler", or "niggly" at Markham impaired her effectiveness in the school system. Such terms have a high probability for creating misunderstanding and ill will in the racially tense environment at Markham and, in fact, had such a result. Racial tensions are high at Markham. Clicks exist between faculty, staff, and students. Racially divisive behavior has been admonished and prohibited by the school's principal. Respondent's explanation is that she chose to use the terms "niggler", niggle", or "niggly" to communicate in such an environment because they are common words in British and Australian society. Respondent's disregard for the potential effect caused by her choice of words in her school environment and the actual misunderstanding caused by that disregard impaired her effectiveness. Respondent's use of the terms "niggler", "niggle", or "niggly" was imprudent in light of Respondent's previous history. Respondent received a written reprimand on August 21, 1990, for an allegation that she used a racial slur in an earlier incident. While other witnesses testified in connection with the investigation leading up to the written reprimand that they heard the racial slur, the student against whom the alleged slur was directed testified that he never heard Respondent use a racial slur against him. The written reprimand notified Respondent that, "Your failure or refusal to abide by this directive could result in disciplinary action up to and including a recommendation for your dismissal." Respondent signed the written reprimand without any admission of the alleged wrong doing. Respondent is an experienced teacher with the benefit of a formal education. Respondent has been a teacher for 23 years. Seventeen of those years have been in Broward County. Respondent has ample exposure to the racial diversity of Broward County and previous experience with accusations that she used racial slurs. Respondent should have been more mindful of the audience she was communicating with, more prudent in her choice of words, and more sensitive to the potential for misunderstanding under the circumstances. Respondent's use of the term "nigger" in the classroom on December 5, 1991, is an act of immorality within the meaning of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(2). Respondent's conduct was sufficient and notorious to bring Respondent and the educational profession into public disgrace and disrespect and to impair Respondent's service in the community. Respondent's use of the term "nigger" in the classroom on December 5, 1991, is an act constituting misconduct in office within the meaning of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B- 4.009(3). Respondent's conduct impairs her effectiveness in the school system. Respondent's use of the term "nigger" in the classroom on December 5, 1991, constitutes gross insubordination or wilful neglect of duties within the meaning of Florida Administrative Code Rule 6B-4.009(4). Respondent's conduct is an intentional refusal to perform or attend to her duties by failing or refusing to follow the directive in the written reprimand.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent should be found not guilty of the charge of using a racial epithet on March 23 and 24, 1992, and guilty of using a racial epithet on December 5, 1991. Respondent should be suspended without pay from the date she was first suspended without pay through the date of the Final Order to be entered in this proceeding. Respondent should also be required to attend and satisfactorily complete the African American Infusion Program administered through the Multi-cultural Department at Markham or a comparable program of education and rehabilitation designated by Petitioner. Nothing in this Recommended Order shall be construed in a manner that precludes Petitioner from "non-renewing" Respondent's professional service contract in accordance with the applicable collective bargaining agreement. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February 1993. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February 1993. APPENDIX TO FINAL ORDER, CASE NO. 92-3552 Petitioner's Proposed Findings of Fact 1.-4. Did not cite to the record Accepted in Findings 7. Accepted in Finding 8. Accepted in Finding 12. 8.-9. Did not cite to the record 10. Rejected in Finding 19. 9. Accepted in part and rejected in part in Findings 7. and 18.-20. Respondent's Proposed Findings of Fact Accepted in Finding 2. Accepted in Finding 5. 3.-4. Accepted in Finding 7. 5.-6. Accepted in Finding 9. 7.-8. Accepted in Finding 10. Accepted in Finding 11. Irrelevant and immaterial, in part. Accepted in part in Finding 12. Accepted in Finding 13. Accepted in Finding 10. See Finding 14. Accepted in Findings 16.-17. 16.-17. Rejected in Finding 18. Accepted in Finding 19. Rejected as irrelevant and immaterial 20.-21. Accepted in Findings 20.-22. 22. Rejected as a truism. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Virgil Morgan, Superintendent Broward County School Board 1320 S.W. 4th Street Fort Lauderdale, Florida 33312
The Issue Whether the Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Lakeyta Givens, is a black female, and was first employed by the Respondent on February 6, 2001. The Petitioner had no experience in the business of re- financing real property; however, the Petitioner was trained by the Respondent, and was given one promotion and a pay-raise. She became sufficiently knowledgeable and productive that she was tasked to train other employees. After she had been with the company for nearly two years, her supervisor wanted to step down for personal reasons. This opened up a position with greater responsibility and increased pay. The Respondent was a closely held corporation owned and operated by Anthony and Rachel Catanzeriti. Anthony Catanzeriti was the manager of the office and was there daily. His wife, Rachel, was the president of the corporation and was not there on a daily basis. She did, however, exercise primary control over the company. Anthony Catanzeriti asked the Petitioner if she would be interested in moving into the supervisor's position at a salary of $15.00 per hour, a raise of $5.00 per hour. The Petitioner indicated that she would be pleased to make the move. Mr. Catanzeriti indicated that his wife would have to approve the promotion, and that he would talk to her about the promotion. There was no action on the promotion for a long time. The Petitioner was concerned about the status of her promotion. The Petitioner heard during this time that Rachel Catanzeriti had stated that she "would not have a nasty nigger work in the company." The Petitioner asked to speak about her promotion with Mr. and Ms. Catanzeriti, but because of various mutual indispositions a meeting was delayed. On February 3, 2003, Rachel Catanzeriti came in to do some personnel work, and a meeting was arranged at which Mr. Catanzeriti was not present. From the content and progression of this meeting, it was clear that the Petitioner was concerned that she was not being promoted because of her race. The Petitioner immediately confronted Ms. Catanzeriti about the purported racial slur. Ms. Catanzeriti denied having made such a remark; however, she immediately became angry. The meeting never addressed the promotion because of Ms. Catanzeriti's anger. In an effort to de-escalate the situation, the Petitioner walked out of the office. Ms. Catanzeriti followed the Petitioner out of the office and between buildings continuing the heated exchange. The Petitioner asked her to discuss the racial epithet, and Ms. Catanzeriti, replied, "Let's talk about your big fat ass." Very shortly after this comment and within the same argument, Ms. Catanzeriti fired the Petitioner. Subsequently, the supervisor's position was filed by a white female, whom the Petitioner had previously trained. The Petitioner's work record was good, and her attendance was regular. She was unable to find employment until April 2004. After the Petitioner had been fired, U S Mortgage, Inc., was closed by the Office of the State's Attorney. The Petitioner reported that Mr. Catanzeriti was currently imprisoned out of state, and Ms. Catanzeriti was living in Texas.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter its final order directing that the Respondent desist from discriminatory employment practices and awarding the Petitioner $4,800.00 in damages for lost wages. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 6th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lakeyta Givens Post Office Box 293 Sanderson, Florida 32087 U S Mortgage, Inc. 28 West Macclenny Avenue, Suite 14 Macclenny, Florida 32063 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
