The Issue Whether the Petitioner, Linda Cattanach, was subject to an unlawful employment practice by Respondent, Florida Department of Elder Affairs, based on her sex or in retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes (2013).2/
Findings Of Fact Petitioner, Linda Cattanach, was at all times relevant hereto an employee of the Florida Department of Elder Affairs. Respondent, Florida Department of Elder Affairs (Respondent or Department), is the state agency responsible for administering human services programs for the elderly and for developing policy recommendations for long-term care. See § 430.03, Fla. Stat. (2015). Respondent operates a Comprehensive Assessment and Review for Long-Term Care (CARES) program to assess individuals for Medicaid long-term care services, whether in a nursing facility, in a private home, or in another community setting. The CARES program operates 19 offices statewide and one central office in Tallahassee. Medical assessments are conducted by CARES Assessors (CAs), and Senior CAs. CAs and Senior CAs are supervised by a Program Operations Administrator (POA) in each office, who reports to a Regional Program Supervisor (RPS). The RPS reports to the Deputy Bureau Chief in Tallahassee, who reports to the Bureau Chief; who, in turn, reports to the Division Director for Statewide and Community- Based Services. In January 2013, Petitioner began employment as a CA in Respondent’s Gainesville office. Petitioner began in a one-year probationary employment status. The record did not clearly establish how many individuals were employed in the Gainesville office with Petitioner. There was an office assistant, Rose Gonzalez; at least four other CAs, including Justin Keels; a registered nurse; and their supervisor, POA Sam Rutledge. Freadda Zeigler was the RPS for the region, which included the Gainesville, Tallahassee, Pensacola, Jacksonville, and Daytona Beach offices. Ms. Zeigler commuted from her home in Broward County. In Tallahassee, Jay Hudson was the Deputy Bureau Chief, Paula James was the Bureau Chief, Carol Carr was the Deputy Division Director, and Marcy Hajdukiewicz was the Division Director. The Gainesville territory covered from Marion County north to the Florida/Georgia line, west to the Leon County line, and east to the Duval County line. CAs were assigned to particular locations within the office’s jurisdiction. CAs traveled to both health care facilities (e.g., nursing homes, assisted living facilities) and private homes to meet with and personally evaluate the needs of the client. Petitioner was primarily assigned to cover facilities in Jasper, Live Oak, Dowling Park, Mayo, and Lake City. Petitioner was in the field conducting evaluations two to three times per week. Her assignments required some long commutes, up to one and one-half hours to Jasper (just south of the Georgia line) and over an hour to Dowling Park and Live Oak. In February 2013, a senior CA position became open in Gainesville. Both Petitioner and Mr. Keels applied and were interviewed for the position. Mr. Keels was selected for the position in March. As senior CA, Mr. Keels did not supervise other CAs in the Gainesville office, but was “put in charge” when Mr. Rutledge was out of the office. When Petitioner began her employment in Gainesville, she was told that a desk was being ordered for her. She was given a folding table to use in her workspace. Petitioner’s workspace was in an open area of the office. Other employees would pass through and occasionally gather in her workspace on breaks or on their way to lunch. Petitioner testified that Mr. Rutledge often came into the open area to interact with other employees around lunchtime to see if anyone wanted to “get food.” Sexual Harassment Claim4/ One day in late March 2013, Mr. Rutledge and Mr. Keels were in Petitioner’s workspace and began discussing a restaurant with the word “cooter” in its name. During this conversation, the two men stood on opposite sides of Petitioner’s worktable, where Petitioner was seated. One of the men asked Petitioner if she knew what the word “cooter” meant, and she responded that she did not. One of the men stated that it meant “vagina.” Petitioner testified that she was embarrassed, uncomfortable, and felt trapped at her worktable where the men stood on either side of her. Petitioner did not report this incident to anyone at first. Petitioner testified that she was afraid that if she said anything, she would be fired. Petitioner’s ambivalence was due in no small part to the fact that Mr. Rutledge was her supervisor. Petitioner described another incident that occurred shortly before the “cooter” incident. Mr. Rutledge called Petitioner into his office and asked her to look at a picture on his computer screen. The picture was of a woman in a bikini. Mr. Rutledge said something to the effect of “that is what my ex-wife used to look like.” Petitioner was embarrassed and left Mr. Rutledge’s office. Respondent maintains a sexual harassment policy of which Petitioner was aware. The policy provides, in part, that “[a]ny employee who believes that he or she is the victim of sexual harassment . . . may make an oral or written complaint to the General Counsel or Director of Internal & External Affairs within 365 days of the alleged discriminatory action.” In April 2013, approximately a week after the “cooter” incident, Respondent’s Inspector General Taroub King began an investigation of Mr. Rutledge, prompted by an anonymous complaint. Among the allegations investigated were that Mr. Rutledge borrowed money from employees, encouraged employees to participate in an investment scheme (or schemes), and utilized employees to witness signatures and notarize documents of a personal nature. The complaint described Mr. Rutledge as maintaining no management structure, lacking basic documentation, and essentially performing no work of any kind. Petitioner was interviewed in connection with the investigation by Ms. King and another investigator from the Inspector General’s office on April 4, 2013. Petitioner was placed under oath and her interview was audio-recorded. Petitioner was questioned about the allegations in the complaint against Mr. Rutledge, and she fully cooperated with the investigators. At the end of the interview, Ms. King asked Petitioner if she had any other information to relay. At that point, Petitioner reported that inappropriate comments and banter of a sexual nature occurred in the office. Petitioner did not report any other details. Ms. King asked Petitioner for particular examples. In response, Petitioner shared the “cooter” incident and the “bikini” incident. All of the employees in the Gainesville office were interviewed by Ms. King. Mr. Keels was interviewed after Petitioner and was questioned about the “cooter” incident and office banter of a sexual nature. At the final hearing, Petitioner maintained that there was both frequent sexual banter and inappropriate conversations in the Gainesville office. She testified that the staff nurse once referred to a patient as having “balls the size of a bull.” She also reported that Mr. Rutledge made hand gestures indicating that Ms. Gonzalez was large-breasted. Petitioner did not share these details with Ms. King during her interview. As with the “bikini” incident, Petitioner was able to walk away from, or otherwise ignore, the comments and gestures of a sexual nature in the workplace. Upon her return to Tallahassee, Ms. King reported her investigative findings to members of Respondent’s Human Resources Department, the Deputy Secretary, and the Director of Internal and External Affairs. Petitioner testified that she sent Ms. King an email sometime after her interview asking whether more information was needed from Petitioner regarding her complaints of inappropriate sexual comments in the workplace. Ms. King denied that Petitioner sent any follow-up email of that nature. Ms. King did recall an email from Petitioner requesting public records. Respondent terminated Mr. Rutledge on April 8, 2013, four days after Petitioner was interviewed by Ms. King. The decision to terminate Mr. Rutledge was made by management in the Tallahassee office. Both Mr. Hudson, the Deputy Bureau Chief, and Ms. James, the Bureau Chief, traveled from Tallahassee to Gainesville to terminate Mr. Rutledge. Ms. Zeigler was likewise present at the Gainesville office for the termination of Mr. Rutledge. However, Ms. Zeigler claimed not to have been informed ahead of time about the termination. She said the appearance of Mr. Hudson and Ms. James at the Gainesville office on April 8, 2013, was a surprise to her. In early May 2013, a significant remodel of the Gainesville office was initiated. The remodel created confusion in the Gainesville office, with furniture being moved around, office files and equipment being boxed up, and the general mess associated with construction in the workplace. At some point, Petitioner lost track of an entire box of her files and later found them on the floor under a pile of chairs she assumed the painters had moved.5/ Alleged Acts of Retaliation Respondent named Mr. Keels as Acting POA, effective April 8, 2013. Ms. James testified, credibly, that Mr. Keels was named Acting POA because he was the senior CA in the office. Mr. Keels was questioned about the “cooter” incident during his interview by the Inspector General. Thus, there is sufficient evidence from which the undersigned can infer that Mr. Keels was aware Petitioner had reported the “cooter” incident to the Inspector General during the investigation of Mr. Rutledge. Petitioner complained that she was ostracized by other employees in Gainesville after Mr. Rutledge was terminated. Petitioner also complained that Mr. Keels treated her unfairly in his capacity as acting POA. First, Petitioner maintained that Mr. Keels increased her caseload, from about 27 to about 44 cases, which made her job very difficult given the lengthy commutes to her assigned facilities. Petitioner introduced no evidence, other than her testimony, that her caseload substantially increased after Mr. Keels became acting POA. Petitioner complained to the Inspector General on April 4, 2013, that her caseload under Mr. Rutledge’s supervision was inordinately heavy. Petitioner also shared with the Inspector General that Mr. Keels, in his capacity as senior CA, was unfair in case distribution. Further, Petitioner testified that although her caseload was heavy in early May, it later declined. The evidence does not support a finding that Mr. Keels assigned Petitioner an inordinately heavy caseload following her complaints to the Inspector General and Mr. Keels’ temporary promotion to acting POA. Sometime after Mr. Keels became acting POA, he took away Petitioner’s worktable. According to Petitioner, Mr. Keels said he took the table for use in the conference room for “staffings,” a term that was not explained by any witness. Petitioner testified there were other tables available in the meeting room which could have been used for that purpose. For the next two months, Petitioner completed her in- office work at a window ledge. She placed her laptop and files on the ledge and utilized extra chairs for additional workspace. In June 2013, Petitioner was presented with a new desk. Petitioner’s Termination During Mr. Rutledge’s tenure as POA, the Bureau had rolled out significant changes to the CARES program. Those changes had not been implemented by Mr. Rutledge, much less communicated to the Gainesville staff. After Mr. Rutledge’s termination, CARES management began monitoring the Gainesville office very closely. During the next few months, Ms. Zeigler was more frequently present in the Gainesville office and was in almost constant contact with Mr. Hudson regarding the activities of the Gainesville office. However, Ms. Zeigler was unaware of any discussions Mr. Hudson may have had with the Bureau Chief or the Division Director. Shortly after Mr. Rutledge’s departure, Ms. Zeigler met with the Gainesville staff to explain new procedures. Among the procedures was a requirement to include on employees’ GroupWise calendars, an entry of every planned field visit. The CAs’ GroupWise calendars were accessible not only to their immediate supervising POA, but also to the RPS and higher-level managers. The calendar was an important management tool used by Respondent both to perform quality assurance checks and to monitor employee performance. On May 9, 2013, Ms. Zeigler sent the following email to the CAs in Gainesville: Good afternoon all, As mentioned in the past meeting in your office, it was requested that I be given access to your GroupWise calendars to help monitor accountability for field visits with Specialization. I would like to thank each of you for adhering to the request, and would like to ask each of you to add the following information to your calendars: First and Last name of client visiting Facility name where client will be visited Home address if visiting client in the home Purpose of visit Time of visit (include estimated travel time) * * * This information is needed for accountability purposes, and also used to check that assessments are being entered in CIRTS, per the attached CARES policy #PPH Update No2011_2, that is still currently in place. Effective immediately, I would like for each worker to add this information to their calendars prior to making a visit. You should also add any approved leave time that you will be taking as well. If your visit schedule changes, it needs to be noted on the calendar with the appropriate change. Please revisit this memo for a thorough understanding. On May 14, 2013, Ms. Zeigler sent an email to Petitioner informing Petitioner that information on her calendar was incorrect. On May 31, 2013, Ms. Zeigler issued a formal counseling memorandum to Petitioner for failure to list her client visits on her GroupWise calendar as directed. The following excerpt is especially relevant: You were instructed to submit your plans for field visits [sic] travel at least one day in advance of the actual travel. A review of your calendar clearly showed that you either did not put any information on your calendar as required and/or you entered incorrect data, for the following dates: April 16, 2013, May 6, 2013, May 7, 2013, May 9, 2013, May 10, 2013, and again on May 14, 2013. At the final hearing, Petitioner did not deny that she failed to enter required information on her calendar. Instead, Petitioner offered a series of excuses, including system connectivity issues, her travel schedule, and confusion regarding a transition from GroupWise to the Outlook calendar system. With regard to connectivity, Petitioner explained that there were problems connecting to the Department’s computer system from remote locations and, occasionally, in the Gainesville office. Petitioner likewise testified that she would not return home until 6:00 p.m. or later on days she traveled to Jasper and other remote field locations. Petitioner complained that connectivity issues prevented her access to GroupWise from home, and thus, was unable to enter the visits scheduled for the following day. Petitioner testified that she complained to the information technology department in Tallahassee about connectivity issues and diligently tried to address these concerns. Petitioner introduced in evidence an email exchange between herself and Ms. Zeigler in which she complained about, and Ms. Zeigler resolved, an issue with Petitioner’s access to CIRTS – the Department’s online case input system. The email string is dated July 17, 2013, well after the date of Petitioner’s documented missing calendar entries. Further, the email relates to access to the case input system and is irrelevant to Petitioner’s claim of issues with connectivity to the computer system in general. Finally, Petitioner explained that the Department changed from GroupWise to the Outlook system, and she was confused about whether to continue adding entries on her GroupWise calendar during that transition. In the May 31, 2013, counseling memorandum, Ms. Zeigler referred to the program’s transition from the GroupWise to the Outlook calendaring system, as follows: The Microsoft Outlook Email and Calendar program was installed on all computers in DOEA, migrating existing GroupWise information to the new Outlook program on May 28, 2013. Instruction videos and online documentation were made available to all DOEA employees to learn how to utilize the new program. You were instructed to give proxy access to the RPS via email from the acting Supervisor. It is evident that you were successful in accessing the Outlook Calendar, as you sent the RPS a request to share your calendar on May 30, 2013. On the same date, you left the office to go to the field at 12:55 p.m., and failed to update/place any information on your calendar before departing. The sign in sheet indicated that you were going to a nursing facility. This repeated failure to comply with procedures is unacceptable. As a result of this failure, your supervisor was unaware of what facility and/or client you were seeing and how long it would take time wise for the field visit. You effectively prohibited your supervisor from knowing your whereabouts and/or the client(s) to be seen. In light of the facts, Petitioner’s alleged confusion about whether to continue adding information to her GroupWise calendar is not credible. Petitioner did not send an Outlook calendar-sharing invite to Ms. Zeigler until May 30, 2013, well after her missing GroupWise calendar entries of April 16 and May 6, 7, 9, 10, and 14, 2013. Further, Petitioner failed to calendar her appointments the same day she sent Ms. Zeigler the calendar- sharing invitation, thus belying any excuse that she had connectivity issues, at least on that particular date. In an effort to minimize the significance of her failure to document her field visits on her calendar, Petitioner testified that she noted her field visits on a daily sign-in log physically maintained in the Gainesville office. Petitioner introduced a composite exhibit purporting to be copies of the daily sign-in logs from April, May, June, and July 2013. Even if the exhibit was reliable evidence of Petitioner’s whereabouts, the logs are irrelevant to the issue of whether Petitioner complied with the electronic calendaring requirement. No evidence was introduced to support a finding that the daily sign-in log was an acceptable alternative to Ms. Zeigler’s specific, clear, and repeated direction to all Gainesville employees to use their GroupWise, and later Outlook, calendars to note their planned field visits with required details. The evidence conflicted as to whether Ms. Zeigler’s May 31, 2013, counseling memorandum constituted discipline. Petitioner testified that the memorandum was a training tool. Ms. Zeigler testified alternately, and with hesitancy, that the memorandum was “almost like a verbal warning type of thing,” and “unofficially formal.” On cross-examination, Ms. Zeigler testified, “I don’t think that that would be a reason to fire somebody after one counseling memo. I mean that would be absurd.” Ms. James testified that the memorandum constituted a first-step disciplinary action. Ms. James explained that a counseling memorandum is preceded by a verbal warning from the supervisor. The Department’s disciplinary policy was not introduced in evidence. In light of Petitioner’s probationary employment status, the issue of whether the counseling memorandum constituted discipline is largely irrelevant. The counseling memorandum is evidence of poor job performance during Petitioner’s probationary employment period. At some point after Mr. Rutledge’s termination, the Department advertised for the open POA position. Both Petitioner and Mr. Keels applied for the position. Mr. Hudson and Ms. Zeigler conducted interviews for the position. Petitioner was not responsive to Ms. Zeigler’s efforts to schedule Petitioner’s interview for the position. Eventually, Ms. Zeigler did interview Petitioner for the position. Ms. Zeigler also interviewed Mr. Keels. In June 2013, Ms. Zeigler prepared performance evaluations of the Gainesville staff. Ms. Zeigler had little knowledge of staff performance prior to Mr. Rutledge’s termination, as Ms. Zeigler was new to the region. Ms. Zeigler gave all the Gainesville employees ratings of “3,” satisfactory performance, across the board. In late July 2013, Ms. Carr and Ms. Hajdukiewicz from the Tallahassee office came to the Gainesville office and personally terminated Mr. Keels. Ms. James did not directly make the decision to terminate Mr. Keels, but she agreed with the decision. Ms. James stated that Mr. Keels was terminated based on his actions after he became acting POA in Gainesville. Ms. James did not elaborate and neither counsel asked any follow-up question. On July 31, 2013, Ms. Carr and Ms. James came to the Gainesville office from Tallahassee, met with Petitioner, and offered her a choice of resignation or termination. Petitioner chose termination. That same day, after leaving the office, Petitioner called the Department of Human Resources and requested to change her termination to resignation. The request was granted. Petitioner did not ask why she was being terminated or asked to resign. Petitioner testified that neither Ms. Carr nor Ms. James gave her a reason. Ms. Zeigler resigned from the Department in October 2013. The circumstances of Ms. Zeigler’s resignation were not introduced in evidence. In that regard, Ms. Zeigler testified as follows: I had a lot of questions with the State that probably should not come up here, but there are a lot of questionable things that were going on with the State at the time which led to my resignation. So I did not question it. I did not question [Petitioner’s] termination based off of my ability to run the office, because I almost felt like it was being run above me.[6/] Ms. Zeigler’s testimony was introduced in support of Petitioner’s claims. However, Ms. Zeigler had difficulty recalling events, including the timing of relevant events. Of note, Ms. Zeigler testified that she was the RPS for Gainesville about a year, meaning she would have begun in the position in October 2012. Later, she testified that Mr. Rutledge was terminated “not long after I was there [as RPS].” Her testimony was hesitant, hedging, and sometimes conflicting. Ms. Zeigler testified that she was in daily contact with Mr. Hudson about issues in the Gainesville office after Mr. Rutledge was terminated, but claimed to have had no advance notice of either Mr. Keels’ or Petitioner’s termination. As such, the undersigned finds Ms. Zeigler’s testimony to be both unreliable and unpersuasive. Ms. Zeigler’s counseling memorandum to Petitioner regarding calendaring is credible evidence of Petitioner’s job performance which cannot be discounted by Ms. Zeigler’s after-the-fact, and apparently biased, testimony.
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 Respondent, Florida Department of Elder Affairs, did commit an unlawful employment practice as to Petitioner, Linda Cattanach, and prohibiting the practice. However, under the specific facts of the case, the undersigned recommends no affirmative relief from the effects of the practice. DONE AND ENTERED this 5th day of October 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th day of October, 2015.
The Issue Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?
Findings Of Fact The Parties. The Petitioner, Sharon L. Zbikowski, is a female. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance. Ms. Zbikowski's Employment. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill. Ms. Zbikowski's Performance. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work. Ms. Zbikowski's Employment by Dr. Medero. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance. Alleged Sexual Harassment. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom. Ms. Zbikowski's Termination from Employment. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner. Ms. Zbikowski's Subsequent Employment. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment. Ms. Zbikowski's Charge of Discrimination. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following: I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment. I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The disputed issues of material fact, if any, are as listed below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The ultimate facts alleged and entitlement to relief are as listed below: . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent. The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . . . . . . Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief: "I am a female." "I worked for the above named respondent since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid." "Petitioner did not abandoned [sic] her job." The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
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 complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, 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 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 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 The issue to be resolved in this proceeding concerns whether the Petitioner had been subjected to a discriminatory practice or decision based upon his race.
Findings Of Fact The facts are hereby found to be as delineated above in the preliminary statement of this Recommended Order and they are incorporated by reference as findings of fact. The Petitioner has twice defaulted, failed to attend the hearing to present his case, and concomitantly failed to contact the Division of Administrative Hearings, the administrative law judge, or any party or party's representative to advise that he would not be able to attend and conduct the hearing on either of the noticed occasions. Such conduct abuses the legal process offered to the Petitioner by Chapters 760 and 120, Florida Statutes. The Petitioner has defaulted on two occasions in this proceeding. The Respondent has expended significant time and funds to prepare for and attend these hearings. The Respondent, by motion, has asserted that it has incurred costs and reasonable attorney's fees in the following total amounts: costs; $1,499.25, and attorney's fees are requested in the amount of $4,478.50. There has been no response to the motion. Accordingly, in view of the foregoing, it is concluded that this matter should be dismissed for lack of prosecution. The motion has preserved the request for fees and costs, which can be addressed once the Commission, by entry of the final order, has determined that the Respondent is the prevailing party. See § 57.105(5), Fla. Stat. Ruling on that motion is reserved until after the entry of the final order.
Recommendation Having considered the foregoing findings of fact, conclusions of law, argument of the parties, and the pleadings, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety while reserving determination of the issues of costs and attorney's fees. DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2005. COPIES FURNISHED: 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 G. Thomas Harper, Esquire Harper Gerlach, LLC 4110 Southpoint Boulevard, Suite 228 Jacksonville, Florida 32216 John F. McBride 201 North Cherokee Street Madison, Florida 32340
The Issue The issue is whether Respondent, Pritesh, Inc., d/b/a IHOP 36-151 ("IHOP"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2011),1/ by discharging Petitioner from her employment in retaliation for her complaints regarding racial and religious discrimination in the workplace.
Findings Of Fact IHOP is an employer as that term is defined in subsection 760.02(7), Florida Statutes. IHOP is a restaurant in Leesburg. IHOP is owned by Pritesh Patel, who owns and operates a total of four International House of Pancakes stores in the Leesburg area through his corporation, Pritesh, Inc. Petitioner is a black female who is an observant Jew. Because of her religious beliefs, Petitioner does not work on the Sabbath, from sundown on Friday until sunset on Saturday. Petitioner was hired to work as a server at IHOP on March 19, 2012. She made it clear that she did not work on the Sabbath, and IHOP agreed to respect her religious beliefs. There was some difference in recollection as to the notice Petitioner gave to IHOP. Petitioner testified that she made it clear she could not work until sundown on Saturdays. The store manager, Brian Jackson, also recalled that Petitioner stated she could only work Saturday evenings. Mr. Patel testified that Petitioner said that she could work on Saturday "afternoon." Petitioner's version is credited as being more consistent with her stated beliefs, though there is no doubt that Mr. Patel was testifying honestly as to his recollection. Petitioner was the only black server working at IHOP at this time. Both Mr. Patel and Mr. Jackson credibly testified that IHOP has had many black servers through the years. Mr. Jackson noted that Petitioner only worked for IHOP for a period of two weeks and therefore was in no position to judge IHOP's minority hiring practices. Petitioner testified that assistant manager Hemanshu "Shu" Patel, a relative of the owner, created a hostile working environment for her from the time she started on March 19. She complained that Shu would alter the seating chart so that she would have fewer tables to cover, meaning a reduction in her tips. Petitioner also stated that Shu was disrespectful and rude, in a manner that caused her to believe there was a racial motivation behind his actions. Despite the fact that Shu was subordinate to Mr. Jackson, Petitioner believed that Shu was really in charge because he was a relative of Mr. Patel and therefore "untouchable" as an employee of IHOP. Petitioner's main complaint was that Shu, who was in charge of work schedules for the restaurant, scheduled her to work on Saturdays. Petitioner testified that on the first Saturday of her employment, March 24, Shu called her to come into work at noon. She replied that she could not come in until after sundown. This problem was apparently worked out to Petitioner's satisfaction, and she was not required to report to work on Saturday afternoon. However, when Shu posted the next week's schedule on the following Tuesday, Petitioner saw that she had been scheduled to work on the morning of Saturday, March 31. Petitioner complained. Both Mr. Patel and Mr. Jackson testified that Shu had merely made an error in scheduling that was rectified as soon as Petitioner notified them of the problem. Petitioner did not deny that the problem was resolved mid-week, well before any Sabbath conflict could arise. Mr. Patel testified that he wanted Petitioner to work from 4 p.m. until midnight on Saturday, March 31, so that she would not lose a day's work due to the scheduling error. Shu phoned Petitioner early on Saturday afternoon and asked her to come in. Petitioner told Shu that she could not come in until 8 p.m. Mr. Patel testified that he did not need someone to work a four-hour shift, and that Petitioner was told not to come in. As a further reason for declining to work on Saturday evening, Petitioner testified that she had only been trained for the morning shift. Mr. Jackson testified that the only distinction between the dayshift and the nightshift is that the latter is less busy. All servers are trained for the morning shift. Mr. Jackson stated that, once trained for the morning shift, a server would find the night shift "a piece of cake." Petitioner's reason for not working in the evening was not credible in this respect. Mr. Patel testified that he had no problem with Petitioner's not working on that Saturday, provided that she understood she was going lose a day. Mr. Patel stated that from his point of view the problems began when Petitioner insisted that he give her weekday hours to make up for the lost Saturday hours. Mr. Patel declined to cut another employee's hours for Petitioner. Petitioner came in to work on the morning of Sunday, April 1. Sunday morning is a busy time for IHOP. According to head server Bernadine Hengst, Petitioner stood near her at the register and voiced her complaints about Shu, who was working in the kitchen. Shu heard Petitioner and stepped into the dining room, asking her, "You got something to say to me?" Petitioner and Shu became loud, and their argument was moved outside for fear of disturbing a restaurant full of people. Petitioner finished her shift then went home and composed a letter to Mr. Patel. She made copies of the letter for every employee at IHOP. Ms. Hengst was the first to see the letter. She phoned Mr. Jackson at home to tell him about it, and Mr. Jackson phoned Mr. Patel. The letter read as follows: On March 19, 2012, I was hired to work as a server. I am a professional, pleasant, respectful, prompt and dutiful individual. As the only African-American server, it is imperative that you know since I have arrived at IHOP, I have faced fierce blatant hostility from a manager ("Shu") and co- workers ("C.C., Misti and Cherish"). I feel Shu has deliberately created a divisive and hostile working environment. It is my understanding Shu is a family member yet his behavior is definitely bad for business. On two separate occasions, Shu altered the seating chart that Brian originally created and took two tables from me. He lacks proficient management skills and is totally unprofessional, disrespectful and rude. On Sunday, April 1, 2012, Shu spoke to me in a loud, impolite manner in front of staff and customers. Shu communicated in a very bellicose fashion and for a moment, it felt as though he would physically attack me. You must take it serious that Shu's conduct is detrimental to your business. When Shu hired me I made it clear that I am Jewish and do not work on the Sabbath ("Saturday"). Nevertheless, Shu called me to come into work on Saturday about noon; I told him I would come in after the Sabbath at 7:00 p.m. The following week I was scheduled to work a Saturday, which in turn caused me to lose a day of work. Also on April 1, 2012, Shu assigned me only two booths for the whole day; when I spoke up about it he threatened to take another booth from me. This type of attitude and his unfair behavior cannot be tolerated in the United States of America in 2012. Shu is outwardly mean, discriminative, and racist towards me. He acts like a tyrant, a bully and he feels he is untouchable. On Sunday, April 1, I was only assigned two booths while my co-workers had four to six tables. This was unfair seating arrangements. At the end of the day, Bernie [Hengst] told all the servers to tip out the busboy, yet I did not because I was unjustly treated by only being assigned two tables. This was one-sided and insulting. I am an exceptional waitress and I depend on this job to pay my bills. During my first week, I was scheduled to work 36.10 hours and this week I was only given approximately 23.0 hours. Everyone should be treated fairly and equally. I ask that you continue to give me a full schedule each week. This letter officially informs you of the battles I have dealt with in your establishment and I have not worked here for one whole month. All Americans have the right to work without being harassed. I urge you to intervene and equitably resolve this issue. Ms. Hengst testified that Shu is a loud person who "talks with his hands," but she saw nothing that gave her the impression that Shu would "physically attack" Petitioner. She did not detect that Shu treated Petitioner any differently than he treated other servers. Ms. Hengst saw Petitioner as an equal participant in the April 1 confrontation. As to Petitioner's complaint about the number of tables to which she was assigned, Mr. Jackson testified that servers are always trained on two booths and then moved to four booths after training is completed. He stated that Petitioner was doing a "terrible" job working four booths, which caused Shu to move her down to two. Mr. Jackson stated that it is counterproductive to overwhelm a new server, and that the server must demonstrate the ability to perform the basics before taking on more tables. On the morning of April 2, after reading Petitioner's letter, Mr. Patel went to the IHOP and sat down for a meeting with Petitioner in hopes of addressing her complaints. Mr. Patel testified that the first thing Petitioner asked him was, "Do you know how many black employees you have?" Though he had been willing to discuss Petitioner's grievances concerning scheduling, Mr. Patel decided to fire Petitioner when she started "threatening us" based on claims of "black and white discriminating." He decided to fire Petitioner for the future of his business, because he did not want the problems associated with allegations of discrimination. Mr. Jackson was also at the April 2 meeting, and testified that Petitioner claimed she was being singled out because of her race. Based on all the testimony, it is found that Petitioner had little basis for claiming that IHOP was discriminating against her based on her race or religion during the actual course of her job. She was mistakenly scheduled to work on Saturday, but was not required to come in to the store once she made management aware of the error. She did lose one shift's worth of work for March 31, but that was partly due to her declining to work the evening shift. The evidence established that Shu Patel was loud, somewhat hotheaded, and perhaps not the ideal choice for managing a busy restaurant, but did not establish that he singled out Petitioner for particular abuse because of her race or religion. The evidence established that Petitioner's poor job performance was the cause of at least some of the friction between her and IHOP management. However, Mr. Patel's own testimony established that he dismissed Petitioner in direct retaliation for her complaint of discriminatory employment practices. IHOP offered no legitimate, nondiscriminatory reason for Petitioner's dismissal.
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 Pritesh, Inc., d/b/a IHOP 36- 151 committed an act of unlawful retaliation against Petitioner. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner. DONE AND ENTERED this 5th day of March, 2013, 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 5th day of March, 2013.
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
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 CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida. P MICHAEL RUFF Hearing Officer Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her race.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Petitioner, an African-American female, submitted an application for employment directly with the store manager, Jerry Wienhoff. Mr. Wienhoff personally interviewed Petitioner and hired her within 48 hours of her application for the afternoon clerk position. She began working for Respondent on July 21, 2009. Petitioner received a notice of a disciplinary issue on March 9, 2010. Respondent cited Petitioner for failure to complete her work in a timely manner. Petitioner was warned that if her work did not improve, her employment would be terminated. Not long after issuance of this disciplinary notice, Mr. Wienhoff, the store manager and Pensacola Regional Manager for 17 years, began receiving complaints about Petitioner's behavior. One complaint came from a long-time customer, while another came from a co-employee. The complaints were that Petitioner treated them rudely. During her employment, Petitioner complained that her work duties were heavier than those of the morning clerk. Mr. Wienhoff relieved Petitioner of certain duties related to tagging each garment dropped off during the afternoon shift. None of the other stores out of the four area stores had similar requests to remove this duty. Petitioner testified that the morning clerk, a white female, Amanda Sidner, was given a lighter workload. Petitioner further testified that Ms. Sidner was given additional hours during Petitioner's vacation, yet Petitioner was not given additional hours during Ms. Sidner's vacation. Mr. Wienhoff testified and Petitioner admitted that she took vacation days during the same week that Ms. Sidner took vacation days. Further, Petitioner was given additional hours during the days Ms. Sidner was on vacation, and the balance of those hours that Petitioner was not interested in working went to Petitioner's daughter, Anastarsia Martinez, also an African- American female. On December 14, 2010, Petitioner was issued her second and final corrective action report by Mr. Wienhoff. At that time, Mr. Wienhoff terminated Petitioner due to the ongoing complaints about her behavior in the workplace. Respondent also established the racial composition of every employee under Mr. Wienhoff's supervision. The company profile in Pensacola shows a racially diverse mix of employees. Petitioner candidly testified that she never heard Mr. Wienhoff make racially insensitive comments to her or any other employee. Her claim of discrimination is based upon favoritism. She believes that other employees were treated better than she, but did not tie this perceived favorable treatment to their race.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of January, 2012, 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 27th day of January, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 Mary Cottrell 776 Backwoods Road Century, Florida 32535 Christopher J. Rush, Esquire Christopher J. Rush & Associates, P.A. 1880 North Congress Avenue, Suite 206 Boynton Beach, Florida 33426 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed an act of employment discrimination by totally reducing the employment hours of the Petitioner, such that the Petitioner was constructively discharged and whether such action was on account of his race, in the manner proscribed by Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Lavon A. Baker, was employed by the Respondent at a convenience store which operated in Jackson County, Florida, at times pertinent hereto. He performed various jobs involving cooking, cleaning, cashier duties, checking and maintenance of inventory at the "Jr. Food Store" involved. His employment record is without blemish, having no disciplinary incidents on his record with that employer, the Respondent. The Petitioner's immediate supervisor and employment decision-maker was Dina C. Bonine, the manager of the store involved. The Respondent, Jr. Food Mart of America, Inc., is a corporation headquartered in Jackson, Mississippi, which owns and operates convenience stores in various locations, employing more than 15 employees. The Petitioner is a black man. He was employed at the Respondent's store until October 1992 with no difficulties with his employer. His work record was good and free of disciplinary incidents. Beginning in early October 1992, he began to have his hours of employment per week reduced in number. This became a problem for him because he was earning insufficient income to meet his monthly expenses. He discussed the possibility of obtaining a second job so that he could earn sufficient income, but his supervisor, Ms. Bonine, advised him that he had to work "at her convenience" and would risk termination if he took a second job. Upon his hours of employment at the Respondent's place of business being reduced to approximately 8-10 hours per week, he was forced to take a second job at the Pizza Hut. He began working at the Pizza Hut for 28 hours per week at the minimum wage rate of $4.65 per hour, beginning in March of 1993. Although his supervisor, Ms. Bonine, cautioned him against taking a second job at the risk of being terminated from his job with the Respondent, she allowed a white female employee, Becky Baxter, and a white male employee named "Bobby", who were more recently hired than the Petitioner, to get additional hours of employment, while the Petitioner's hours were being reduced. At the same time, she allowed these two white employees to work at a second job with another employer, as well. Both Ms. Baxter and "Bobby" had been discharged by the Respondent, or Ms. Bonine, in the past, but had been rehired by her and given preferential treatment, in terms of working hours and accommodation of a second job, which treatment was not accorded to the Petitioner. In fact, Ms. Baxter worked in a second job at the Pizza Hut at the same time the Petitioner did, but received the overtime hours formerly given to the Petitioner at the Respondent's place of employment, while the Petitioner's hours were cut to nothing. The Petitioner testified that "she was already at 40 hours and she just got more". These employees, hired since the Petitioner, got all the working hours they wanted from the Respondent and convenient working time schedules, as well, compared to the Petitioner's hours. Ultimately in April of 1993, the Petitioner's working hours were totally eliminated and therefore his employment was effectively terminated. Upon taking the second job at the Pizza Hut, his employer at that facility allowed him to schedule his hours at the Pizza Hut so that he could still obtain all of the working hours he needed at the Respondent's facility. Nevertheless, his hours were constantly reduced by Ms. Bonine to the point that, in April, he had no hours scheduled for several weeks, effectively resulting in his termination. Debra McDaniel is a home health aide and certified nursing assistant. She is a friend of the Petitioner, and when he lost his automobile due to his reduced working hours and reduced income, she often transported him to and from his job. She therefore was able to observe on several occasions the work schedule placed at the Respondent's facility. She observed, for several weeks at a time, that the Respondent had given the Petitioner no working hours. She testified that Ms. Bonine told the Petitioner that she would post a new schedule with his working hours on it, but that never occurred. This observation was made sometime in April of 1993. Ms. McDaniel's testimony thus corroborates that of the Petitioner. Up until the first of October of 1992, the Petitioner earned $160.00 per week at the Respondent's employment facility, without overtime hours calculated in that figure. There is no evidence of what he earned in terms of overtime hours. His employment hours at the Respondent's facility were reduced to 8 hours per week by March 1, 1993. At that point in time, he took the job at Pizza Hut at 28 hours per week at a rate of $4.25 per hour. He worked at that job at Pizza Hut at the rate of 28 hours per week until the end of November, 1993. He was out of employment and looking for work until December 18, 1993, when he became employed with "Seminole Outdoors", at the rate of $5.00 per hour for 32 hours per week. He remained with that employer at that rate until February 28, 1994, when he resigned to return to school full time. He is in a law enforcement education program at Chipola Junior College. The Respondent adduced no evidence in this proceeding and failed to appear. The notice of hearing was issued on April 11, 1994 and served on the Respondent at its address of record, as previously mentioned in the above Preliminary Statement.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner has established that he is a victim of employment discrimination in the form of constructive discharge, following discriminatory reduction of his hours of employment, and opportunity to hold non-conflicting outside employment, all on account of his race, and that he be reinstated in his position with the Respondent and awarded back pay in an amount reflective of the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1994. COPIES FURNISHED: Mr. Lavon A. Baker Post Office Box 1276 Sneads, FL 32460 Ms. Cheryl Little Administrative Assistant Jr. Food Mart of America, Inc. P.O. Box 3500 Jackson, MS 39207-3500 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
