The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on June 25, 2007.
Findings Of Fact Petitioner is an African-American male who was hired by Respondent in approximately September 2006. When hired, the name of the facility was Greenville Hills Academy. The nature of Respondent’s business was a residential facility which housed boys under an apparent contractual arrangement with the Department of Juvenile Justice. Petitioner was hired by Respondent as a tester, teacher of life skills, and also was assigned library duties. On December 5, 2006, Petitioner received a memorandum from George Hare, Lead Teacher, entitled “Areas of Concern.” The memorandum addressed Respondent’s areas of concern regarding Petitioner, including problems with administering intake and exit tests to clients, as well as Petitioner’s attitude with co- workers. At some point, Petitioner was placed in a welding class. It is his understanding that, in the context of his teaching certificate, he is not permitted to teach outside his field. Petitioner was not certified in welding. Because of that, he refused to teach the welding class or to give grades to students in the class. On March 21, 2007, Petitioner received another memorandum from Mr. Hare. The memorandum notes that the grades in question were not welding grades but grades for the life skills portion of the welding class. The memorandum concludes by placing Petitioner on suspension for two days for failure to perform a duty or to follow instructions. On March 26, 2007, Petitioner received a Memorandum from Jeff McSpaddin, Director of Grants and Projects, notifying him that his employment was being terminated for insubordination and continued nonperformance of assigned duties and responsibilities. Petitioner asserts that he was not properly trained by Respondent and that white employees were properly trained. Other than Petitioner’s general statements, there is no specific evidence in the record as to who these other employees were, their positions, or what type of training they may have received that he did not. Petitioner also asserts that he was not provided with another staff person who could cover for him when he went to the restroom. Because of the nature of the facility, teachers were not permitted to leave students in a classroom even while going to the restroom, and needed a staff person to cover in that instance. As a result, Petitioner could not go to the restroom when needed. He does not know, however, if other teachers were assigned staff to assist them in this regard. Other than the general allegations that he believed white employees received training that he did not and were generally treated better than he was, Petitioner did not identify any similarly situated employees of Respondent outside of his protected class who were treated more favorably. Moreover, there is no evidence that anyone of another race replaced him.
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 Petition for Relief. DONE AND ENTERED this 9th day of May, 2008, 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 May, 2008.
The Issue The issues in this case are whether Respondent unlawfully discriminated against Petitioner on the basis of a disability in violation of the Florida Civil Rights Act of 1992 (FCRA), when Respondent failed to hire Petitioner, and whether Respondent retaliated against Petitioner in violation of the FCRA, when Respondent issued Petitioner a trespass warning and later notified law enforcement of Petitioner's presence on Respondent's property, resulting in Petitioner's arrest for Trespass After Warning.
Findings Of Fact Mr. Tyler is hearing impaired. Prior to moving to Florida in October 2005, Mr. Tyler had worked for Disneyland in California for over two years. On October 14, 2005, Mr. Tyler submitted an application for employment with Disney in Orlando. Mr. Tyler met with an employee of Disney with a sign language interpreter present. Mr. Tyler was advised that he had been "red flagged" as a result of his previous employment with Disneyland. Being red flagged meant that Mr. Tyler was considered to be a restricted rehire. Because he had left the employ of Disneyland a few weeks before he applied for employment at Disney, there was a question of his employment stability. He was told that he needed to provide an employment history of at least six months after he left Disneyland's employ. On April 25, 2006, Mr. Tyler submitted a second application for employment with Disney. On the application, Mr. Tyler stated that he currently held two jobs. He had been working at Macy's since November 2005 and at a 7-11 store beginning in March 2006. However, Disney personnel concluded that his current employment did not demonstrate employment stability. Mr. Tyler was given an interview by Disney with a certified sign language interpreter present and was advised that his rehire status was still restricted. Mr. Tyler was given a rehire petition to complete so that his rehire status could be reviewed by Disney. The rehire petition requested Mr. Tyler to state the reasons for his termination from the company and the reasons why Mr. Tyler thought he should be rehired. Additionally, Mr. Tyler was required to provide employment verifications from his employers to demonstrate job stability. Mr. Tyler did not provide a completed rehire petition to Disney. Mr. Tyler claims that he did provide the necessary paperwork to Disney at Christmastime to an unknown older man, who was at the Disney casting office1/ and who advised Mr. Tyler that the employees were on Christmas break. Mr. Tyler further testified that he later overheard the older man at a 7-11 store tell another person that he had thrown Mr. Tyler's application in the trash. Mr. Tyler's testimony is not credible. First, the next time that Mr. Tyler applied for a job with Disney was in November 2006, prior to Christmastime. Obviously, he did not supply the information needed for a rehire petition between the second and third applications. Additionally, it defies credulity that Mr. Tyler would overhear the older man at a 7-11 store tell someone that he had thrown the paperwork away. The likelihood that Mr. Tyler would see the older man again is slim, and there would be no reason for the older man to be confessing that he had thrown Mr. Tyler's paperwork away. Mr. Tyler tried to see Kelly Frank (Ms. Frank), the senior vice president of Disney's human resources office, after he was told that he was not eligible for rehire. Ms. Frank had been employed at Disneyland prior to transferring to Disney. While she was at Disneyland, she and Mr. Tyler had met concerning some disciplinary issues that Mr. Tyler had while working at Disneyland. Mr. Tyler felt that Ms. Frank had been helpful with his situation at Disneyland and thought that she could run interference for him concerning his applications for rehire at Disney. Mr. Tyler would show up unannounced at Ms. Franks' office and ask to meet with her. Mr. Tyler's method of dealing with such situations was to bypass the chain of command and go to someone higher in management. Ms. Frank was aware of Mr. Tyler's attempts to see her. Ms. Frank never spoke to Mr. Tyler about his applications for employment at Disney; instead her assistant asked Robin King (Ms. King), from Disney's human resources department, to talk with him. Ms. King and Bekki Musee (Ms. Musee), who was a team leader for Disney's casting operations support, set up a meeting with Mr. Tyler with a sign language interpreter present. They tried to explain to him that he had to follow the procedures and submit a rehire petition to have his rehire status reviewed and that he would need six months of stable employment to be considered for a rehire. Additionally, they told him that he should take his complaints to the casting office, where the employment decisions were made and not to try to see Ms. Frank. They further told Mr. Tyler that he should make an appointment when he needed to speak to someone rather than show up unannounced. Disney needed advance notice so that a sign language interpreter could be present to assist Mr. Tyler. On November 11, 2006, Mr. Tyler filled out a third application for employment with Disney. He stated on the application that he had been employed by Macy's from November 2005 to May 2006. He stated that he became employed by Gaylor Entertanment [sic] Suite Hotel in November 2006. No mention was made of his employment at the 7-11 store. When Ms. Musee became aware that Mr. Tyler had submitted a third application, she assigned a senior recruiter, Clayton Kirkland (Mr. Kirkland), to interview Mr. Tyler. Ms. Musee wanted to have someone who had not interviewed Mr. Tyler before to perform the interview to give Mr. Tyler a fair opportunity. Mr. Kirkland interviewed Mr. Tyler, and a sign language interpreter was present during the interview. Mr. Tyler told Mr. Kirkland that he had been terminated from Disneyland because of attendance. At the beginning of the interview, Mr. Tyler acted professionally. Mr. Kirkland asked Mr. Tyler about Mr. Tyler's employment at the 7-11 store, which had been listed on a previous application. Mr. Tyler denied ever having worked at a 7-11 store and claimed that Ms. Musee had put that on his previous application. When questioned about his employment history at the 7-11 store, Mr. Tyler's demeanor changed, and he became angry and appeared to be frustrated. Mr. Kirkland told Mr. Tyler that he was not qualified for the job and would not be hired. This decision was based on gaps in Mr. Tyler's employment history, the restricted rehire placed by Disneyland, the lack of job stability, his failure to provide documentation for his rehire status when asked to do so, and his aggressive behavior. Mr. Tyler became angry and upset, stood up, leaned over Mr. Kirkland's desk, and slammed his hand down on the desk. At that point, Mr. Tyler was not relying on the sign language interpreter, but was verbally talking to Mr. Kirkland. Mr. Tyler became upset and left the interview. As he was leaving, he saw Ms. Musee. He walked hastily toward her, yelling and screaming at her and saying that she had put some notations in his file. He got in front of her face and started pointing his finger at her. She felt uncomfortable and threatened by his actions. Mr. Tyler did not have his hearing aids on at the time; therefore, he could not tell if his voice was loud when he spoke to Ms. Musee. However, whether he was wearing his hearing aids does not excuse his getting in front of Ms. Musee's face and pointing his finger at her. On December 27, 2006, Mr. Tyler showed up at the casting office unannounced and requested a sign language interpreter so that he could talk with Ms. Musee. Mr. Tyler's testimony that the only reason that he went to the casting office was to set up an appointment with Ms. Musee in the future is not credible. The greater weight of the evidence is that he showed up expecting to talk to Ms. Musee when he arrived at the casting office, just as he had done when wanted to speak to Ms. Frank. Ms. Musee was notified that Mr. Tyler had come to the casting office unannounced. Ms. Musee agreed to talk with Mr. Tyler in her office, but alerted security because, after her last interaction with Mr. Tyler, she did not feel comfortable meeting with him alone. Two security personnel stayed just outside of Ms. Musee's office while she was talking to Mr. Tyler. There was no sign language interpreter present during the meeting because Mr. Tyler's visit was unannounced, and there was insufficient time to get an interpreter. Mr. Tyler verbally questioned Ms. Musee about his attempts at employment, and Ms. Musee again explained to Mr. Tyler the reason that he was not rehired was because of his restricted-hire status. Mr. Tyler was verbally responding to Ms. Musee's statements, which indicated to Ms. Musee that he was understanding what she was telling him. Several times Ms. Musee tried to end the conversation, but Mr. Tyler did not leave. Finally, Disney security stationed outside Ms. Musee's door intervened and asked Mr. Tyler to leave. Patricia Bryant (Ms. Bryant), who at the time was the area manager of security operations for the downtown Disney area, arrived on the scene, and she asked Mr. Tyler to leave. She asked Mr. Tyler if he understood what she was telling him, and he indicated that he did. Mr. Tyler failed to leave. Deputies from the Orange County Sheriff's Office showed up. Mr. Tyler was issued a trespass warning by Ms. Bryant and a deputy sheriff. The trespass warning is dated December 27, 2006. Mr. Tyler verbally acknowledged to Ms. Bryant that he understood the trespass warning, which advised him that he was not to go on Disney property. The trespass warning is in writing and states: "Your are hereby warned that you are not authorized, licensed or invited to be in these premises and may be arrested if you refuse to leave or return at any time in the future." There was nothing on the trespass warning showing an expiration date. Once the trespass warning is issued, it stays in place until it is lifted. In October 2007, Mr. Tyler and his roommate, Arden Bird (Mr. Bird), who is deaf, went to a kennel club located on Disney property. There was some dispute concerning the charges for the dogs that Mr. Tyler and Mr. Bird had boarded at the kennel. Mr. Tyler went to assist Mr. Bird with the communications. Mr. Tyler was aware that the kennel was located on Disney property. He and Mr. Bird discussed whether Mr. Tyler should go to the kennel club because of the trespass warning, and they concluded that it would not be in violation of the trespass warning.2/ Staff at the kennel club called Disney security to come to the kennel club because Mr. Tyler previously had been given a trespass warning. Carolyn Truluck (Ms. Truluck), who, at that time, was an investigator for Disney security, came to the kennel club. She requested a copy of the trespass warning from security. When she confirmed that a trespass warning had been issued, she called the Orange County Sheriff's Office and requested a deputy to come to the scene. A deputy arrived and placed Mr. Tyler under arrest for trespassing. Ms. Truluck was unaware of any claims of discrimination by Mr. Tyler, and she was not directed by anyone in the human resources department of Disney to call for a deputy. Her actions were based on the prior issuance of a trespass warning and Mr. Tyler's appearance on Disney property despite the trespass warning. On October 15, 2008, Mr. Tyler filed an Employment Charge of Discrimination with the Commission, alleging Disney discriminated against him based on his disability in the following ways: On or about October 27, 2007, I was retaliated against by being issued a Trespass Warrant. On or about September 20, 2007, I was denied employment. * * * The position of Houseman was an open and available position which I was qualified for and I applied. I was denied employment and the position. I complained to Ms. Bekki Musee, Team Leader, Casting Operation Support[,] about my disability and the need for an interpreter, she refused to provide this assistance. In October 2007, I was subsequently issued a Trespass Warrant by the company. I believe that my Disability and the fact that I complained of what I believed to be discriminatory treatment led to the retaliatory actions taken against me.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Tyler's Petition for Relief. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 20th day of April, 2011.
The Issue The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Mike Ostrom, was employed by Respondent, Beachers Lodge Condo Association, Inc., as a maintenance man for approximately seven years until his termination on March 23, 2012. Respondent is a Florida condominium association, located at 6970 A1A South, St. Augustine, Florida 32080. James W. Gilliam is the licensed community association manager for Respondent, is 78 years old, and has many years of property management experience. Petitioner filed a Complaint of Discrimination on the grounds of his age (55) and disability (eye surgery) with the Florida Commission on Human Relations (Commission) on March 23, 2012. Following an investigation, the Commission issued a Notice of Determination: No Cause on September 27, 2012. Petitioner filed a timely appeal of the Commission's determination on October 19, 2012. The petition was referred to the Division of Administrative Hearings, and a final hearing was conducted on December 11, 2012, in St. Augustine, Florida. Petitioner's work as a maintenance man involved numerous duties, including general maintenance to the grounds and buildings, painting, repairing balconies and other structures not requiring a general contractor, electrical work, and maintaining the pool. Petitioner worked alone much of the time. Prior to the arrival of Mr. Gilliam as the association manager, Petitioner had a good working relationship with the former manager, Steve Burdick. Under Mr. Burdick's supervision, Petitioner had more freedom to perform his maintenance work without what he calls "interference." Mr. Gilliam is more of a "hands on" supervisor than the previous manager had been. Petitioner was resistant to the constant checking on his work by Mr. Gilliam. He believed Mr. Burdick recognized his experience and left him alone to perform his daily tasks with passive supervision. Mr. Gilliam, as a new manager with Respondent, was given instruction by the association president, Joanne Dice, on behalf of the board of directors, to more closely supervise the maintenance staff. In Petitioner, Mr. Gilliam saw a good employee who "liked to do things his way." Mr. Gilliam estimates that Petitioner would do about 90 percent of the assigned tasks differently from how he would prefer them done. Mr. Gilliam tried to get Petitioner to come around to his way of doing things because he was responsible to the board of directors for properly maintaining the property. Mr. Gilliam believes he did not harass Petitioner, but does remember upsetting him on one occasion when he called him "Michael" rather than his given name of "Mike." After Petitioner made clear the fact that he preferred to be called "Mike," Mr. Gilliam never called him "Michael" again. Mr. Gilliam gave clear instructions as to how he expected the tasks assigned to Petitioner be performed, yet Petitioner continued to do things his way. Mr. Gilliam often had a certain order or priority for performing required maintenance tasks which Petitioner regularly failed to follow. After Petitioner had eye surgery and was placed on limited duty by his physician, Dr. Oktavec, Mr. Gilliam confirmed the light detail in a letter dated March 19, 2013, so that Petitioner would not suffer further injury to his eye through over exertion. Ms. Dice was elected president of the board of the condo association in 2010. She lives in Gainesville, Florida. On three separate occasions (July 26, October 27, and November 3, 2011), she drove from Gainesville to St. Augustine to discuss Petitioner's complaints of alleged harassment by Mr. Gilliam. She believed that Mr. Gilliam's job was to establish priorities and assign tasks to be completed. Sometimes, due to inclement weather and other factors, priorities would have to shift. Ms. Dice observed that Petitioner complained that he did not need anyone to tell him how to perform his job. She noted that Beachers Lodge Condominiums is a large property that requires the cooperation of all employees along with the board of directors to maintain it to the standards expected by the owners and their guests. For a year, Ms. Dice and Mr. Gilliam tried to help Petitioner improve his performance, eliminate any deficiencies, and brighten his attitude, all to no avail. A few months after the final meeting Ms. Dice held with Petitioner, she agreed with Mr. Gilliam that Petitioner's behavior could no longer be tolerated and that he should be terminated for cause. The March 23, 2012, letter from Mr. Gilliam terminating Petitioner's employment was explicit in its reasons for termination. The letter offered 13 reasons for the termination and addressed all charges made by Petitioner against Mr. Gilliam. The reasons may be summarized as follows: On October 11, 2011, Mr. Gilliam gave Petitioner a list of daily and weekly duties which he acknowledged having received. Petitioner complained about receiving such a list. On October 25, 2011, Mr. Gilliam gave Petitioner a disciplinary letter for having falsified his timecard on October 19, when Mr. Gilliam observed Petitioner driving down A1A at a time he said he was still at work. Petitioner requested owners send letters to Mr. Gilliam that he was giving Petitioner too much direction and that Petitioner was doing a good job, another indicator of not taking direction. On October 14, 2011, Petitioner did not complete a washing task he was assigned, but went on to perform another task he deemed more important. Again, on March 13, 2012, Mr. Gilliam issued Petitioner a letter addressing corrective action for not following instructions. Petitioner accused Mr. Gilliam of jerking him by the coat in front of witnesses. No witnesses came forward to support this claim. Mr. Gilliam listed issues with Petitioner's work ethic in the March 13, 2012 letter. Petitioner had broken a floor during cleaning which was cited in the March 13 letter. Another refusal to take guidance was listed in the March 13 letter. Mr. Gilliam advised Petitioner that that the failure to correct his behavior concerning following direction would lead to "additional correction." Petitioner refused to sign this letter. Petitioner had been previously advised that he was to engage in light activity based upon his physician's prescription, and as set forth in a March 19 letter from Mr. Gilliam. On March 23, 2012, a St. Johns County deputy came to the office of the association and advised Mr. Gilliam that Petitioner had filed a complaint for assault against him, which the deputy determined not to be a criminal matter. Petitioner applied for unemployment compensation after receiving the March 23 letter terminating his employment. His claim was denied by the Department of Economic Opportunity, since he had been terminated for misconduct. He is currently in the process of losing his home and has only found work with his church for 7-8 hours a week. Petitioner admits that he stood up for himself when he disagreed with Mr. Gilliam by cursing him, calling him names, and writing complaint letters to condo owners and board members. Petitioner claims he was discriminated against by his 78-year-old boss, Mr. Gilliam, who allegedly said, "if you were 30 and not 50, you could do this job better." This alleged statement was not corroborated by any witnesses and was denied by Mr. Gilliam. Petitioner alleges that Mr. Gilliam discriminated against him by making fun of him after he had eye surgery. The letter dated March 19 shows that Respondent recognized the eye injury and surgery and warned Petitioner to engage in only light duty as ordered by his doctor. No witnesses testified to the alleged derogatory comments concerning Petitioner's vision. Respondent was never made aware of any claim of discrimination against Petitioner based upon his alleged disability. Their understanding was that Petitioner needed surgery on his eyes which was performed successfully by his physician and corrected the problem. Petitioner was not replaced by a younger employee when he was terminated. Respondent continued with just one full-time maintenance man and two part-timers. The roster of employees for Respondent shows that the remaining maintenance men are ages 56, 45, and 23. Petitioner is seeking $800,000 in lost wages, yet provided no evidence to support an award of that magnitude should he be successful in his discrimination claim.
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 Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 9th day of January, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James W. Gilliam Beachers Lodge Condo Association, Inc. 6970 A1A South St. Augustine, Florida 32080 Mike Ostrom 900 South Rodriguez Street St. Augustine, Florida 32095 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Ms. Jones is a person of the African-American race. She worked in Pensacola, Florida, for Attorney Walter Steigleman, who was a contract provider for the Department's Child Support Enforcement (CSE) program. In the Spring of 2007, the Department terminated its contract with Mr. Steigleman and set up its own Child Support Enforcement Program. This program was referred to as the Legal Services Unit (LSU). Thereafter, the Department employed Ms. Jones pursuant to a contract executed June 25, 2007. The Department viewed this new LSU as a "pilot" project and, accordingly, did not wish to establish full-time equivalents pursuant to the state employment system. Therefore, the contract entered into with Ms. Jones was an "at will" employment contract and provided that she could be terminated upon two weeks' notice. Because Petitioner was not a statutory state employee, she had no right to appeal any termination or layoff. Staff hired for the project included Katherine Wright, an African-American attorney; Shayna Marstellar, a Caucasian attorney; Andrew Wood, a Caucasian attorney; Ms. Jones, a legal assistant; Megan McClinnis, a Caucasian legal assistant; Ruth Taylor, a Caucasian legal assistant; Marquieta Howard, a Caucasian legal assistant; Janet Thornhill, a Caucasian legal assistant; and Jacqueline McBride, an African-American senior clerk. Ms. Rhonda O'Kelley was the Regional Manager in overall charge of the Department's operations in the area. Priscilla Phipps, a Revenue Administrator III and veteran of 22 years with the Department, was in charge of the LSU. Ms. Phipps understands that it is in the Department's interest to make accommodations for employees in order to retain them. She has adjusted the hours of employees many times in her career and at some point put Ms. Jones on a flex schedule at Ms. Jones' request. Ms. Jones compared herself with Megan McClinnis. Ms. McClinnis had a young child and was allowed absences so long as she subsequently made up the missed time. Ms. McClinnis often called in late, but was allowed to make up for missed work. Ms. McClinnis was provided cross-training and Ms. Jones was not. However, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones. Ms. McClinnis on occasion had quality of work issues. Ms. Jones was paid $17.00 per hour, and Ms. McClinnis was paid $15.00 per hour. Each LSU team member had specialized duties. Ms. Jones and Ms. McClinnis prepared dockets for court and prepared pleadings, and Ms. Jones often attended court proceedings. Ms. Howard prepared petitions. Ms. McBride put the files in order, prepared notices, and acted as a courier. Ms. Taylor worked on judges' cases. Ms. McClinnis was provided cross-training in these activities, and Ms. Jones was not. However, as previously stated, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones and other members of the team. In any event, there was no testimony that cross-training was a benefit. PAILS is an acronym for a CSE, computer-based, tracking system. Both Ms. Jones and Ms. McClinnis were trained to use this system, and both could use it, but Ms. McClinnis, according to Ms. Phipps, was faster. Consequently, Ms. Phipps directed Ms. McClinnis, rather than Ms. Jones, to use the machine. There is no benefit to using the PAILS program. By August 2007, Ms. O'Kelley concluded that there were performance problems with the LSU. In order to improve the operation, she made personnel reassignments. Among other moves, she discontinued the practice of having Ms. Jones attend court. She assigned additional people to work on dockets. In September 2007, Ms. Phipps held a meeting with personnel involved with CSE. At the meeting were four African-Americans (Ms. Jones was one of them), one Hispanic, and the remainder were Caucasian. During the meeting there was a discussion regarding the timeliness of the cases set on the docket and the number of cases required to be re-set. During this discussion, Ms. Jones stood up and loudly protested some of the remarks made by certain attendees. This outburst startled some of the attendees and some thought it unlike Ms. Jones to engage in such behavior. Nothing occurring during the meeting was connected in any way to race. Subsequent to the meeting, Ms. Phipps remarked that she was surprised Ms. Jones had acted in an unprofessional manner. The mother of Ms. McClinnis worked for the Department for many years, and was working there when her daughter was employed. Although witnesses denied Ms. McClinnis received special treatment, it was clear that everyone in the office was aware of the relationship, and the relationship had some effect on Ms. McClinnis' privileges. For instance, Ms. McClinnis ignored call-in procedures with impunity. Ms. Jones told Ms. Walker and Ms. O'Kelley that she believed Ms. McClinnis was benefiting from nepotism. Ms. O'Kelley discussed the complaint with regard to nepotism with Ms. Phipps. Ms. Jones never, during the entire term of her employment, made any claim of disparate treatment based on race. The procedure for handling complaints of racial discrimination is to report the complaint to the inspector general. Ms. O'Kelley and Ms. Phipps made no report to the inspector general with regard to complaints by Ms. Jones because her complaints with regard to favoritism did not involve race. Ms. Jones reported to work on time and was present when she was supposed to be present. Her co-workers believed her to be a good worker. However, Ms. Jones and almost all of the workers in the LSU had quality of work issues. All of them had work returned from the attorneys for corrections. When Ms. McClinnis was counseled with regard to errors, she accepted the correction in good faith. When Ms. Jones was counseled with regard to errors, she became defensive. The Department was generally displeased with the staff of the LSU. Ms. Bradford (African-American) was terminated in accordance with the provisions of her contract in March 2008. During May and June 2008, contract employees Wright (African- American), Ms. Wood (Caucasian), Ms. Marsteller (Caucasian), Ms. Taylor (Caucasian), Ms. McClinnis (Caucasian), and Ms. Jones (African-American), were terminated. Ms. Howard (Caucasian) and Ms. McBride (African-American) were retained. Disparate treatment by anyone involved with Ms. Jones because of race did not occur. The evidence of record reveals no evidence of any racial bias by anyone.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations Dismiss the Petition for Relief filed by Mary Lynn Jones. DONE AND ENTERED this 25th day of February, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cindy Horne, Esquire Department of Revenue Carlton Building, Room 304 501 South Calhoun Street Tallahassee, Florida 32399 Robert Framingham Department of Revenue Post Office Box 10410 Tallahassee, Florida 32302 Mary Lynn Jones 6501 Robar Tesora Street Navarre, Florida 32566 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2009.
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue The issue in the case is whether the termination of Petitioner's employment by Respondent constituted discrimination against Petitioner on the basis of gender.
Findings Of Fact Petitioner is a female, a member of a protected group under applicable law, and was at all times material to this case, employed by Respondent until the termination of employment that is the subject of this dispute. Respondent is an employer as the term is defined by relevant sections of the St. Petersburg Municipal Code and the applicable Pinellas County Ordinance. During the period of time relevant to this dispute, Sam Obinwa owned Respondent. During the period of Mr. Obinwa's ownership, Respondent was a business engaged in providing health care supplies, including pharmaceuticals to customers. Beginning in July 1996, Petitioner was employed as a courier by Respondent. Petitioner was primarily assigned to make deliveries of supplies to Respondent's customers. Respondent also employed a second courier, a male, during this period. At some point during Petitioner's employment, Mr. Obinwa hired an office manager, Kim Henderson. Ms. Henderson became Petitioner's supervisor. Ms. Henderson was responsible for the operation of the office, including receiving customer complaints and resolving employee disputes. Mr. Obinwa testified that he received information related to the office operations from Ms. Henderson and relied upon it in making the decision to terminate Petitioner's employment. According to Mr. Obinwa's testimony, he received complaints regarding Petitioner's job performance and behavior from both customers and Ms. Henderson. Mr. Obinwa testified that he discussed the complaints with Petitioner during her employment. On December 14, 2003, Mr. Obinwa met with Petitioner and explained that her employment was being terminated. As grounds for the termination, Mr. Obinwa, in a termination letter provided to Petitioner, cited complaints about her behavior from both customers and work associates. The complaints included lack of cooperation, abusiveness, failure to follow instructions or to adhere to the delivery schedule, and missed or late medication deliveries. Petitioner asserts that she was terminated on account of gender. There is no credible evidence, direct or indirect, that Respondent's termination of Petitioner's employment was on account of gender. At the time of Petitioner's termination, Respondent employed eight to nine persons, including six to seven females. The employee most similarly situated to Petitioner (the male courier) was not terminated; however, there is no evidence that there were complaints regarding his behavior from either customers or work associates. At the hearing, Petitioner asserted that the male courier generally received the same treatment as did she. The evidence establishes that Petitioner received an additional benefit that was not provided to the male courier. Petitioner was permitted to use a company delivery vehicle for occasional personal transportation. There is no evidence that the male courier was permitted to take the company vehicle for personal use. Petitioner testified that another male employee identified as Herman Jones was hostile towards her and towards other women working for Respondent. Petitioner claimed that Mr. Jones was somehow responsible for her termination. Mr. Jones was a pharmacy technician. Mr. Jones was responsible for imputing prescription information into the computer system and for preparing the medications according to the prescriptions. Prior to being delivered to the customers by the couriers, the medications were checked by a pharmacist. There is no credible evidence that Mr. Jones had any supervisory duties related to Petitioner. There was testimony suggesting that there were personality conflicts between Petitioner and Mr. Jones. There is no evidence that Mr. Jones was involved in Mr. Obinwa's decision to terminate Petitioner's employment, other than the general consideration Mr. Obinwa gave to the complaints from Petitioner's co-workers related to her behavior in the office. At the hearing, Petitioner presented supportive letters from five customers who were apparently pleased with Petitioner's performance. Petitioner made between 100-200 deliveries each week to Respondent's customers. Mr. Obinwa testified that some of the customers to whom Petitioner made deliveries were happy and that others were not. No evidence related to damages to Petitioner was presented during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's complaint be DISMISSED. DONE AND ENTERED this 1st day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2004. COPIES FURNISHED: Stephanie N. Rugg City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731-2842 Suzanne M. Mucklow, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Willie Mae Curry 2702 4th Street, South St. Petersburg, Florida 33705-3641 Donna J. Buchholz, Esquire D. J. Buchholz, P.A. 4320 El Prado Boulevard, 15 Tampa, Florida 33629
The Issue The issues to be resolved in this proceeding are whether Petitioner was terminated from his employment with Respondent because of his race, his alleged disability, and in alleged retaliation for his attempt to file a workers' compensation claim in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. Petitioner also has been diagnosed with obsessive/compulsive disorder and major depression. On March 21, 1997, Petitioner began his employment with Florida Department of Corrections as a substance abuse counselor at Lancaster Correctional Institution. Petitioner's employment status was in career service, probationary status for six months from the date of his employment. A probationary status employee can be terminated without cause. Petitioner's employment as a counselor required him to be present at the institution a reasonable amount of time in order to perform his counseling duties. From March 21, 1997 through September 2, 1997, Petitioner failed to report for work 39 full workdays out of a possible 115 workdays. In addition, Petitioner had five other workdays that he only worked part of the day, with a total of 16 hours of leave used over those days. Sixteen hours is the equivalent of two full workdays missed by Respondent. As a result, Petitioner was absent from work approximately 35 percent of the time. Thirty-five percent absence rate was excessive based on Petitioner's job duties. Most of the leave was without pay because Petitioner had not accumulated enough sick or annual leave to cover his absences. The leave was taken for various reasons, but a large part of the leave was taken when Petitioner was hospitalized due to his mental condition. Petitioner's doctor released him from his hospitalization on August 8, 1997; however, Petitioner did not return to work until August 20, 1997. The last pay period ran from Friday, August 22, 1997 to Thursday, September 4, 1997. Petitioner only worked 20 hours out of 40 the first week and two hours out of 40 the second week. Around September 1, 1997, Petitioner went to the personnel office to inquire about filing a workers' compensation claim based on his disability. The staff person he spoke to did not know the procedure for filing a workers' compensation claim. She told Petitioner she would find out the procedure and asked him to return the next day. Other than Petitioner's speculation about the events following his initial inquiry about filing a workers' compensation claim, other material evidence regarding the events following his initial inquiry and Respondent's response thereto was submitted into evidence. The evidence is insufficient to draw any conclusions of a factual or legal nature regarding Petitioner's workers' compensation claim and his termination. Petitioner was terminated on September 2, 1997, the day following his initial inquiry about workers' compensation. Petitioner received his letter of termination on September 2, 1997. Petitioner was a probationary status employee when he was terminated. Eventually, Petitioner filed a workers' compensation claim. The claim was denied by the Florida Department of Labor and Employment Security. In 1997, L.D. "Pete" Turner was the warden at Lancaster Correctional Institution. As warden, Mr. Turner supervised Petitioner. Mr. Turner made the decision to terminate Petitioner due to his excessive absences. Mr. Turner did not terminate Petitioner based on Petitioner's race, his alleged disability, or because of Petitioner's attempt to file a workers' compensation claim. Petitioner was needed at work and he was not there a sufficient amount of time to fulfill his job duties. In fact, there was no competent evidence that there was any connection between Petitioner's termination and/or his race, disability, or desire to file a workers' compensation claim. Petitioner alleged that two employees at the institution were excessively absent but were not terminated. The employees were Doris Jones and Victoria Englehart. Both individuals were career service employees with permanent status. They were not probationary status employees. Doris Jones is an African-American female. Victoria Englehart is a white female. No other evidence was produced at the hearing regarding these two employees, their attendance records, job duties or anything else of a comparative nature. Clearly, the evidence is insufficient to make any comparison between these two employees and Petitioner's employment and termination.
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 6th day of June, 2001, in Tallahassee, Leon County, Florida. 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 6th day of June, 2001. COPIES FURNISHED: Otis Ware Post Office Box 2155 Trenton, Florida 32693 William J. Thurber, IV, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner was employed for approximately five years with Respondent as a salesman. RF Group, LLC, is a limited liability company, doing business as Respondent, McGowan's Heating and Air Conditioning, and is a company engaged in the heating and air conditioning business. Petitioner was a successful salesman for four and one- half years with the company until a new salesman was hired. According to Petitioner, the new salesman was given most of the sales leads and Petitioner was cut out. Eventually, Petitioner's salary was reduced due to a decrease in his sales performance. He attributes his decrease in sales production to Respondent choosing the new salesman over him. Although he claimed age discrimination in his initial complaint, Petitioner offered no evidence or testimony that he was not given the sales leads due to his age and that the younger salesman received the leads because Respondent considered Petitioner too old to conduct his business. Petitioner resigned his position with Respondent because he was not making enough salary. After his resignation, Petitioner went to work with Total Air Care, but his employment was terminated due to company lay-offs in October 2010.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 11th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 G. Alan Howard, Esquire Milam, Howard, Nicandri, Dees & Gilliam, P.A. East Bay Street Jacksonville, Florida 32202 Luis G. Arias 3526 Laurel Leaf Drive Orange Park, Florida 32065 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
