The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et. seq., Florida Statutes, as set forth in Petitioner's Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) on October 29, 2001, and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner presented no evidence in support of his allegation that Respondent discriminated against him.
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 filed in this case. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 October, 2002. COPIES FURNISHED: John C. Seipp, Jr., Esquire Bonnie S. Crouch, Esquire Seipp, Flick and Kissane, P.A. 2450 Sun Trust International Center 1 Southeast 3rd Avenue Miami, Florida 33131 Brian D. Albert, Esquire 2450 Northeast Miami Gardens Drive Miami, Florida 33180 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This discrimination case involves an allegation by petitioner, David Coleman, that he was denied employment by respondent, City of Jacksonville (City), because of his handicap. The City denies this allegation. A preliminary investigation by the Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. By way of background, petitioner has been employed by the City on four separate occasions, the last time as an employee in the mosquito control department in 1984. He was "released" the same year for "unacceptable leave." Since 1990, he has applied for at least twenty separate positions with the City. In conjunction with those and earlier efforts to obtain a job with the City, he has filed several job applications, including one in December 1987 and another in June 1992. Such applications are valid for a period of two years after they are signed and filed with the City. Therefore, if petitioner applied for a position with the City in March 1991, he did not have a valid job application on file. The petition for relief filed by Coleman describes the unlawful employment practice allegedly committed by the City as follows: unlawful hired or employment practice: with veteran preference that I have, and a handicap, which is alleged. The petition for relief does not describe the handicap. At hearing, however, petitioner contended he suffers from paranoia schizophrenia. Petitioner says that he applied for a job as a "traffic checker" with the City's engineering department in March 1991. City records reveal, however, that it has no such position called "traffic checker," and thus it hired no one for that job in 1991. It does have a position called "parking enforcement specialist," but since no description of the functions of that job is of record, it is unknown if the two positions are the same. Even so, City records do not show that petitioner made application for that position in March 1991. Notwithstanding this shortcoming, petitioner says that he interviewed for the position with an unidentified "supervisor," and he was told to prepare a resume, which he later gave to the interviewer's secretary. Thereafter, he made inquiry with the City's affirmative action office and learned that a veteran, not disabled, had been hired to fill the slot. Petitioner then brought this action charging the City with an unlawful employment practice. It is noted he has subsequently filed a second discrimination claim pertaining to another job application with the City. At hearing, petitioner contended that he suffers from paranoia schizophrenia. Other than his own assertion, however, no evidence was produced to confirm this disability, and as to this issue it is found that insufficient credible evidence exists to support a finding in petitioner's favor. The City admits that in one of petitioner's job applications filed with the City, petitioner attached a copy of a DD214 form reflecting that he was honorably discharged from the military. Also, the City acknowledges that in one of the applications is found a statement that petitioner had a 30 percent service related disability but the type of disability is not described. Whether the service related disability was still valid in March 1991 is not of record. Finally, petitioner's exhibit 1 is a copy of what purports to be a "statement of patient's treatment" from a VA outpatient clinic prepared in February 1985, but this document is hearsay, and in any event, is so dated as to have no probative value in this case. The more credible evidence shows that petitioner did not apply for the position of "traffic checker" or parking enforcement specialist in 1991. Moreover, petitioner had no valid application on file at that time, and there is no credible evidence as to who, if anyone, was hired to fill the position or what were the qualifications of the person hired. Even if one assumes an application was filed, the record is silent as to why petitioner's application may have been denied or, assuming he had a handicap, whether he could adequately perform the essential functions of the job. Given these considerations, and the lack of evidence to establish that petitioner is disabled with a handicap, it is found that the City did not commit an unlawful employment practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of May, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5926 Respondent: Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commissioin Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Mr. David Coleman 1071 Ontario Street Jacksonville, FL 32205 Brian M. Flaherty, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32202
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.
Findings Of Fact The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached. Petitioner then announced that, "Since they won't settle, I have no more to say." The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 1st day of August, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michele B. Brown, pro se 2634 North Point Circle, Apt. B Tallahassee, Florida 32308 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility. Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms. O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner. Ms. Banton did what she had been directed to do. Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.
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 determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000 COPIES FURNISHED: Priscilla M. Young 312 Lime Avenue Orlando, Florida 32805 Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602 Sharon Moultry, 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 Whether the Respondent violated Chapter 626, Florida Statutes, by entering a plea of nolo contendere of grand theft of the third degree; whether he was placed on probation without an adjudication of guilt for grand theft of the third degree; and whether he lacks the fitness and trustworthiness to engage in the insurance business contrary to Chapter 626, Florida Statutes.
Findings Of Fact The Respondent, Ronald David Lewis, holds various licenses to sell insurance contracts issued by the Petitioner, which is charged by statutes to regulate licensees. The Respondent misappropriated over $10,000 from Audrey M. Walker, who was a client of the Respondent. The State's Attorney for the Seventh Judicial Circuit filed an information against the Respondent charging him with grand theft of the third degree. The Circuit Court Judge Shawn L. Briese entered an order of probation which reflects that the Respondent entered a plea of nolo contendere, and was placed on 60 months' probation by order withholding adjudication of guilt. The deposition of Audrey M. Walker establishes that the Respondent misappropriated funds from Ms. Walker, whose trust he had gained by virtue of his licensed status.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order revoking all the licenses Respondent holds to sell insurance contracts. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. 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 9th day of March, 2001. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Ronald David Lewis 3800 South Atlantic Avenue Apartment 304 Daytona Beach, Florida 32127 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
The Issue Whether the Petitioner timely filed her Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations ("Commission").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with investigating and acting upon complaints filed under Florida's Civil Rights Act, Sections 760.01-760.11, Florida Statutes (2006).1 § 760.06, Fla. Stat. On August 14, 2006, the Commission issued a Right to Sue notice, in which it informed Ms. Williams, among other things, that the FCHR hereby issues this Right to Sue. Since it has been more than 180 days since your complaint was filed, and since no determination was made within 180 days, you are entitled to pursue the case as if the FCHR issued a Determination of Reasonable Cause. . . . (Citation omitted). You may pursue this case in the Division of Administrative Hearings by filing a Petition for Relief with the FCHR within 35 days from the date of this Right to Sue letter, or you may file a lawsuit in a circuit court of the State of Florida anytime within one year from the date of this Right to Sue letter, provided such time period is not more than four years from the date the alleged violation occurred. Pursuant to the terms of this notice, Ms. Williams was required to file her Petition for Relief with the FCHR no later than 35 days from the date of the August 14, 2006, notice, that is, no later than September 18, 2006. Ms. Williams completed and signed a Petition for Relief from an Unlawful Employment Practice on September 14, 2006. A receipt from the USPS establishes that, on September 17, 2006, the USPS accepted a letter from Ms. Williams addressed to the Commission; that the letter was sent via express mail; that neither next-day nor second-day delivery was selected; that a third option for delivery, "Add Del Day," was selected. The scheduled date of delivery stated on the receipt was September 20, 2006. Ms. Williams's Petition for Relief from an Unlawful Employment Practice was received by the Commission on September 19, 2006. The USPS tracking website shows that the letter assigned number EQ 628681913 US was delivered on September 19, 2006.
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 from an Unlawful Employment Practice filed by Teesha Williams. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 21st day of November, 2006.
