The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This discrimination case involves an allegation by petitioner, David Coleman, that he was denied employment by respondent, City of Jacksonville (City), because of his handicap. The City denies this allegation. A preliminary investigation by the Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. By way of background, petitioner has been employed by the City on four separate occasions, the last time as an employee in the mosquito control department in 1984. He was "released" the same year for "unacceptable leave." Since 1990, he has applied for at least twenty separate positions with the City. In conjunction with those and earlier efforts to obtain a job with the City, he has filed several job applications, including one in December 1987 and another in June 1992. Such applications are valid for a period of two years after they are signed and filed with the City. Therefore, if petitioner applied for a position with the City in March 1991, he did not have a valid job application on file. The petition for relief filed by Coleman describes the unlawful employment practice allegedly committed by the City as follows: unlawful hired or employment practice: with veteran preference that I have, and a handicap, which is alleged. The petition for relief does not describe the handicap. At hearing, however, petitioner contended he suffers from paranoia schizophrenia. Petitioner says that he applied for a job as a "traffic checker" with the City's engineering department in March 1991. City records reveal, however, that it has no such position called "traffic checker," and thus it hired no one for that job in 1991. It does have a position called "parking enforcement specialist," but since no description of the functions of that job is of record, it is unknown if the two positions are the same. Even so, City records do not show that petitioner made application for that position in March 1991. Notwithstanding this shortcoming, petitioner says that he interviewed for the position with an unidentified "supervisor," and he was told to prepare a resume, which he later gave to the interviewer's secretary. Thereafter, he made inquiry with the City's affirmative action office and learned that a veteran, not disabled, had been hired to fill the slot. Petitioner then brought this action charging the City with an unlawful employment practice. It is noted he has subsequently filed a second discrimination claim pertaining to another job application with the City. At hearing, petitioner contended that he suffers from paranoia schizophrenia. Other than his own assertion, however, no evidence was produced to confirm this disability, and as to this issue it is found that insufficient credible evidence exists to support a finding in petitioner's favor. The City admits that in one of petitioner's job applications filed with the City, petitioner attached a copy of a DD214 form reflecting that he was honorably discharged from the military. Also, the City acknowledges that in one of the applications is found a statement that petitioner had a 30 percent service related disability but the type of disability is not described. Whether the service related disability was still valid in March 1991 is not of record. Finally, petitioner's exhibit 1 is a copy of what purports to be a "statement of patient's treatment" from a VA outpatient clinic prepared in February 1985, but this document is hearsay, and in any event, is so dated as to have no probative value in this case. The more credible evidence shows that petitioner did not apply for the position of "traffic checker" or parking enforcement specialist in 1991. Moreover, petitioner had no valid application on file at that time, and there is no credible evidence as to who, if anyone, was hired to fill the position or what were the qualifications of the person hired. Even if one assumes an application was filed, the record is silent as to why petitioner's application may have been denied or, assuming he had a handicap, whether he could adequately perform the essential functions of the job. Given these considerations, and the lack of evidence to establish that petitioner is disabled with a handicap, it is found that the City did not commit an unlawful employment practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of May, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5926 Respondent: Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commissioin Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Mr. David Coleman 1071 Ontario Street Jacksonville, FL 32205 Brian M. Flaherty, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32202
The Issue Whether Respondent, McDonald's Corporation, discriminated against Petitioner, Carolyn Hadley, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2000).
Findings Of Fact Petitioner is an African-American female who worked at the Cocoa Beach, Florida, McDonald's restaurant from October 1, 2000, until March 17, 2001. She voluntarily terminated her employment. Respondent owns and operates restaurants and is subject to Chapter 760, Florida Statutes (2000). Respondent has an extensive, well-conceived, "Zero Tolerance" policy which prohibits unlawful discrimination. This policy is posted in the workplace, is distributed to every employee at the time he or she is employed, and is vigorously enforced by management. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Petitioner did not avail herself of Respondent's "Zero Tolerance" policy. Petitioner complains of two isolated instances of what the evidence clearly shows to be workplace "horseplay" as the basis of her unlawful employment discrimination claim. On one occasion, a shift manager placed a promotional sticker on Petitioner's forehead. The second involved ice cream being placed on Petitioner's face. The evidence reveals that the "horseplay" complained of was typical of this workplace and not race or sex based. Practical jokes, food fights, ice down shirt backs, and similar activities, while not encouraged by corporate management, were a part of the routine at this restaurant. Petitioner was not the singular focus of the "horseplay"; it involved all employees. There is no evidentiary basis for alleging that it was racial or sexual in nature, as it involved employees of differing races and sexes. Approximately a month after the latest of the incidents complained of, on March 17, 2001, Petitioner voluntarily terminated her employment. Six months later, in September, 2001, Petitioner complained to Dexter Lewis, an African-American corporate employee who is responsible for investigating claims of unlawful workplace discrimination, about the two incidents. She claimed that she had been embarrassed by the incidents but did not suggest to him that they had been racially or sexually motivated. Mr. Lewis investigated the alleged incidents; he confirmed that the incidents had occurred and that similar incidents were widespread, but not racially or sexually motivated; he reprimanded the store manager and shift manager for their unprofessional management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2004. COPIES FURNISHED: Carolyn Hadley 135 Minna Lane Merritt Island, Florida 32953 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia Brennan Ryan, Esquire Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et. seq., Florida Statutes, as set forth in Petitioner's Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) on October 29, 2001, and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner presented no evidence in support of his allegation that Respondent discriminated against him.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2002. COPIES FURNISHED: John C. Seipp, Jr., Esquire Bonnie S. Crouch, Esquire Seipp, Flick and Kissane, P.A. 2450 Sun Trust International Center 1 Southeast 3rd Avenue Miami, Florida 33131 Brian D. Albert, Esquire 2450 Northeast Miami Gardens Drive Miami, Florida 33180 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, a place of public accommodation, violated Section 760.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Shawn Sutton, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Golden Corral Restaurant, which is a structure for public accommodation. On July 8, 2007, Petitioner, accompanied by his parents, grandmother and siblings, visited Respondent restaurant for the purpose of eating therein. The total number in the group that accompanied Petitioner was approximately 15. Prior to July 8, 2007, Petitioner's family was a frequent customer of Respondent restaurant and had eaten there on approximately 50 occasions. There had never been a request for special accommodations for Shawn Sutton on any previous occasion. Respondent has a sign on the front door of the restaurant that reads as follows: "Please remain with your party until seated. For guests with special needs, please see the manager. Golden Corral." Respondent is a buffet restaurant. Patrons pay for meals upon entry and prior to being seated. Respondent has a seating policy that requires all persons on the same receipt of payment to remain seated together until a waitress takes their beverage order, verifies that all persons in the party are included on the receipt, and delivers a plate to each person. The members of a party are then free to sit wherever they choose. On July 23, 2007, after a visit to the same restaurant on that day, Petitioner's mother emailed Golden Corral three times complaining about rudeness and lack of professionalism on the part of restaurant employees. In one email, she makes her only reference to the matter at issue in this case, indicating that when told that her son was disabled, a restaurant employee, "Tangie," "changed the entire tone and tried to accomidate [sic] us the best she could." While Petitioner's disability is such that he needs assistance carrying his plate (and food) from the buffet line to his seat, he is able to feed himself without assistance. On July 8, 2007, the entire family sat together and Petitioner was able to eat after his mother and grandmother assisted him in obtaining his food. The evidence revealed that Petitioner's mother's complaint was substantially directed to the "rudeness" she perceived from Respondent's employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 13th day of August, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maureen M. Deskins, Esquire Butler, Pappas, Weihmuller Katz and Craig, LLP 777 South Harbor Island Boulevard Suite 500 Tampa, Florida 33602 Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803
The Issue The issues for consideration in this case concern separate notices to show cause placed against the named Respondents alleging violations of Chapter 509, Florida Statutes (1990 Supp.), and Chapter 7C, Florida Administrative Code. These notices date from January 25, 1991. The notices to show cause seek to impose fines against the corporation and the Nelsons.
Findings Of Fact On May 14, 1990 Windy Shores Trading Post Inc. conveyed property at 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, to Windy Shores Aero Research, Inc. That latter corporation is the Respondent in DOAH Case No. 91-0681. Again for ease of reference Windy Shores Aero Research, Inc. shall be referred to as "the corporation." The Respondent corporation is a Florida corporation. No one identified as having appropriate authority to request a hearing for the corporation either on an expedited basis or pursuant to the normal notice time prescribed by Section 120.57(1)(b)2, Florida Statutes, has asked that the corporation be heard in defending accusations made in the notice to show cause pertaining to DOAH Case No. 91-0681. The hearing request described in the preliminary statement made by Eric Nelson does not constitute a legitimate request for hearing by the corporation. This determination is made based upon the record established at hearing both in testimony and documentary evidence. All that has been established concerning the corporation's position is that, according to Petitioner's Exhibit No. 16 in DOAH Case No. 91-0681, the corporation through certified mail return receipt requested was served with the emergency order and associated notice to show cause. At all times relevant to the inquiry, a building a 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, was operated as a seven unit, transient rental, public lodging establishment. The last license of record for that property had been issued in the name of Roy E. Midkiff, d/b/a Layton Apartments under license no. 74-01494H-1. This license was issued under the authority of Chapter 509, Florida Statutes. Neither the corporation nor the Nelsons have ever sought or been issued a license pursuant to Chapter 509, Florida Statutes, which would allow those Respondents to operate the public lodging establishment at 30 South Grandview Avenue. It can be inferred that the property in question passed from Midkiff eventually ending up with the Respondent Corporation after the conveyance from Windy Shores Trading Post, Inc. on May 14, 1990. By history, the City of Daytona Beach became aware of the subject property and its problems back in March, 1990. In particular, the City of Daytona Beach through its Code Enforcement Division was concerned about the addition of a living unit at the premises without appropriate permission. Concerns about this were addressed to Carol E. Nelson at 2036 South Ocean Shores Boulevard in Flagler Beach, Florida by certified mail return receipt requested dated March 26, 1990. A copy of this notice of violation may be found as Petitioner's Exhibit No. 1. This was followed up by an affidavit of violation and notices of hearing addressed to Carol E. Nelson, who in this affidavit of violation and notices of hearing was referred to as President, as she had been in the March 26, 1990 correspondence. This description of the violation of adding a living unit and other matters related to that from the point of view of the Code Enforcement Board of the City of Daytona Beach may be found in Petitioner's Composite Exhibit No. 2. These documents under Petitioner's Composite Exhibit No. 2 run from April, 1990 to January 29, 1991. In would appear that the presidency which was being attributed to Carol Nelson was that affiliation with Windy Shores Trading Post, Inc., the former corporate owner of the subject property. The violation concerning the addition of an unauthorized living unit at the subject facility remains pending before the City of Daytona Beach. When the tax records were prepared for 1990 the City of Daytona Beach became aware of the change in the ownership of the subject property as described in Petitioner's Exhibit No. 3 listing the corporation as the owner and the corporate headquarters as 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Fred Holmes of the Daytona Beach Code Administration Division and Inspector/Supervisor for that Division, in his testimony, addressed the history of the property from the point of view of the City of Daytona Beach. When he was on the property on January 29, 1991, the persons who were on the property other than tenants were the Nelsons. Holmes is also aware that on January 30, 1991, an application for an occupational license to operate the subject property was made with the City of Daytona Beach and was signed by Carol Nelson in the interest of the corporation. A copy of this occupational license application can be found as Petitioner's Exhibit No. 5. It points out that the property is owned by Winifred L. Nelson of 2038 South Ocean Shore Boulevard, which has been shown to mean 2038 South Ocean Shore Boulevard in Flagler Beach, Florida. The record on balance supports the fact that Winifred L. Nelson, who is Eric Nelson's mother, owns the corporation. The application and Petitioner's Exhibit No. 5 admitted into evidence refers to a transfer of ownership of the subject property from Windy Shores Trading Post to the corporation. On January 29, 1991, the City of Daytona Beach communicated with Petitioner in the person of Barbara Palmer, Director, notifying the Petitioner that effective January 25, 1991, the City had placed the property in question off limits by notice that it was unsafe and its use or occupancy prohibited. A reinspection on January 29, 1991, pointed out that the violations about which the City, as well as the Petitioner, were concerned related to safety and occupant welfare had not been corrected. The correspondence of January 29, 1991, from the City to the Petitioner found as Petitioner's Exhibit No. 4 speaks of those matters. A list of deficiencies found by the City corresponds in many respects to allegations in the notices to show cause. According to Fred Holmes an inspection was made on February 1, 1991 to speak to the application for occupational license and the results of that inspection were not known at the point of hearing. Petitioner's Exhibit No. 6 admitted into evidence related to the City of Daytona Beach and its inspection dated January 11, 1991, points out deficiencies that are common to the concerns in the notices to show cause. Notice of these deficiencies was provided to Carol and Eric Nelson at the time of this January 11, 1991 inspection. Inspector Holmes was of the opinion that the apartment building would not have met local code requirements of the City of Daytona Beach. The City was continuing to express concerns about the unauthorized occupancy of the one apartment added without permission. The City at that point expected corrections to be made and the removal of that improvement, i.e. the additional apartment. Inspector Holmes is unaware of any changes over time in persons who are responsible for the conduct of the business at the property in that he has no documentation in his records concerning such changes. In particular, he is not aware of any permission from Winifred Nelson to Eric Nelson allowing him to act in her behalf. At the hearing Holmes was unaware that Winifred Nelson was the authorized agent for the corporation. Charles Casper, Environmental Health Specialist for the Petitioner, made an inspection at the premises on June 8, 1990, and found certain deficiencies which are set out in the Composite Exhibit No. 7. Among the highlights of this inspection was the identification of the fact that the property was being rented without being properly licensed and that an additional unit had been installed under the building without city approval or permits as described before in the remarks attributable to Inspector Holmes. Petitioner's Exhibit No. 7 is a composite exhibit and it also contains a complaint by J. Young made on June 29, 1990, concerning a security deposit about which she had requested reimbursement on moving out of the apartment at the subject premises effective May 5, 1990. Within that exhibit is found a copy of a memorandum dated May 2, 1990, from Carol E. Nelson signed as d/b/a Windy Shores Trading Post, Inc. releasing Ms. Young from lease obligations as a tenant. The contents of the Young lease may be found in Petitioner's Exhibit No. 8 admitted into evidence. It includes the agreement under the terms of the lease related to the security deposit. Back in June, Casper was attempting to get Carol Nelson to seek a license from the Petitioner to operate the premises. He made Ms. Nelson aware of the problems that he had identified at the premises to include the lack of a license. If Carol Nelson should arrange for the purchase of a license for the benefit of the corporate operator the obtaining of that license, according to Casper, would take care of the complaint about a lack of license. He reminded Carol Nelson that if the corporation as opposed to Windy Shores Trading Post, Inc. operated the premises, it would need a license and that if during certain relevant times the two corporations operated the premises separately that the proprietors would be paying for licenses twice within a license period. During this conversation Carol Nelson told Casper that when problems were experienced they were responded to by changing to a new corporation. Carol Nelson told Casper that Carol Nelson and Eric Nelson operated the property in question. When Casper made his June inspection he understood the name of the premises to be Layton Apartments. This was based upon the records of the Petitioner associated with the earlier licensed operator Mr. Midkiff. J. M. Young had entered into the lease that has been described through Volusia Realty Associates, Inc. as agent for Midkiff. Four or five months later Windy Shores Trading Post, Inc. bought the property from Midkiff, to Young's understanding. This is confirmed in Petitioner's Exhibit No. 9, correspondence from a representative of Volusia Realty to Petitioner in which Windy Shores Trading Post, Inc. in this May 17, 1990 correspondence is identified as the new owner. Ms. Young had been made aware of that change on January 24, 1990 in correspondence from Volusia Realty to J. Miller setting out that Windy Shores Trading Post, Inc. was now the owner of the property in question. Carol Nelson and her husband are the owners of Windy Shores Trading Post, Inc. Petitioner's Exhibit No. 7, which contains the January 24, 1990 correspondence sets out the fact that Ms. Young's security deposit had been transferred to the new owners, the Nelsons. After the change in ownership from Midkiff to Windy Shores Trading Post, Inc., Young would pay Carol and Eric Nelson her rent and would get a receipt from Windy Shores Trading Post, Inc. Following certain problems, which brought about Young's departure, she got the release from the requirements of her lease from Carol Nelson as has been described. Eric Nelson told Ms. Young that she would get her security deposit back as did Carol Nelson. The security deposit has not been returned. This has not been arranged even though Ms. Young has continued to contact Eric Nelson to get the deposit money. No notice has been given to Ms. Young concerning a claim against the security deposit made by Eric Nelson. Ms. Young was never made aware of a transfer of the ownership of the subject property to the corporation. Dennis Steinke is a Sanitation and Safety Specialist with Petitioner. On December 20, 1990, he performed an inspection at the premises in question. This inspection together with an inspection of January 22, 1991, forms the basis of the charges in the notices to show cause. The findings in the Steinke inspection are part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. A legal notice was given of the findings of that inspection. That led to a notice to show cause dating from January 15, 1991, directed to Eric and Carol Nelson trading as Layton Apartments. This notice to show cause predates the notices to show cause which are under consideration in the present cases. The prior notice to show cause of January 15, 1991 is part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. It carries with it the same nine violations which are spoken to in the subject notices to show cause. Again, the Nelsons do not contest the findings set out in the legal notice which followed the inspection by Steinke and as identified in the present notice to show cause in DOAH Case No. 91-0682 attached as an appendix and as restated from the January 15, 1991 notice to show cause. The January 15, 1991 notice to show cause was served on the Nelsons. No one availed themselves of the opportunity for an informal conference on January 24, 1991 that the January 15, 1991 notice to show cause made available. At the time Steinke made his December 20, 1990 inspection and made the findings reported in Petitioner's Exhibit No. 10 he was unaware that the corporation owned the premises. Steinke's findings of December 20, 1990 were based upon the inspection of three or four units within the licensed premises. Another Inspector with the Petitioner who had a knowledge of the premises is Arthur Begyn. He took certain photographs of the premises on January 25 and 29, 1991, found as Petitioner's Composite Exhibit No. 11 showing the state of disarray at the licensed premises and further confirming observations that had been made by Inspector Steinke in his December 20, 1990 inspection. Begyn had been to the property in mid-November based upon a complaint about operations there. His purpose was to inspect the property but no one was available for such inspection. He tried to find out who the owner of the property was by calling a number that was located on the building. That telephone number is found in one of the photographs in Petitioner's Exhibit No. 11 admitted into evidence. He made contact through that telephone number and presented himself as a possible future tenant. The person who spoke to him on the phone was a lady. She stated that someone would come and make contact with him at the property. As a result of this telephone conversation he met with Carol Nelson who said she was representing Windy Shores Trading Post, Inc. which was the name in a recorded message eminating from the telephone number that had been found on the building. In other words, the telephone answering device said that the caller had made contact with Windy Shores Trading Post, Inc. When the contact was made with Carol Nelson at the property, Begyn made the remark that "you must be the owner of the building", to which Carol Nelson replied "yes, I am". That comported with what certain tenants had told Begyn, that is to say that Carol Nelson and her husband owned the building. Carol Nelson in the course of the conversation with Begyn told him that he should pay her or her husband Eric Nelson the rent money. It was not clear whether the payment would end up with an individual or a corporation. Among the highlights of the photographs of Petitioner's Exhibit No. 11 are those which show that the basement apartment has a door shorter than that of Mr. Begyn how is 6' 1 1/2" tall. There is one photograph that shows a smoke detector ripped from a wall and his inspection of the seven units demonstrated that the individual units did not have smoke detectors. There was a smoke detector in the hall which worked. A rear entrance door on the first level appears to be rotting and in that same area the wood had been disturbed and there were rodent droppings in evidence. There was a leak in an apartment bathroom. There was tile that had been ripped up and not repaired. There was loose electrical wiring hanging down in a certain area. One door which normally has a window was missing a window. A junction box showed where a wire had touched the metal and had a charred appearance with exposed wiring. There was a large hole in the ceiling leading up into an attic. These items were of the nature found by Steinke in his December 20, 1990 inspection. On January 25, 1991, when Begyn was at the property around 6:25 p.m. the Nelsons arrived and removed certain notices that had been placed by the Petitioner in Daytona Beach which prohibited the occupancy of that building. At one point Eric Nelson yelled out to Begyn to, "stay the f off by mf property." Begyn served and read the order and notice related in DOAH Case No. 91-0682 to Carol Nelson on January 25, 1991. This pertains to the emergency order and notice to show cause. These items are seen in Petitioner's Exhibit No. 14 admitted into evidence. Chester Cole who is the District Director for Petitioner in the Orlando, Florida area, in his testimony, identified the fact that the Petitioner became aware that the property in question was operating without the appropriate license contemplated by Chapter 509, Florida Statutes. The records of the Petitioner indicated that Midkiff was the last license holder. Someone contacted the Petitioner and said that he was taking over the property, that person claimed to be Eric Nelson. Eric Nelson indicated that he was the owner of the property and made no mention of a corporation. Nelson was sent an application in which he could point out the change in ownership and get a new license. That application was never returned by Eric Nelson. Mr. Cole was not made aware through any notice from the Nelsons or anyone else who the owner was beyond the Midkiff ownership. As of January 14, 1991, Cole was of the opinion that the Nelsons owned the premises in question. Cole became aware of the tax roll information found in Petitioner's Exhibit No. 3 which showed that the corporation owned the property in question. Cole was also aware through information from the Secretary of State, carried forward on a computer printout of the Petitioner that the corporation had a corporate address of 2036 South Ocean Shore Boulevard, Flagler Beach, Florida, and the registered agent was Winifred Nelson whose address is 2038 South Ocean Shore Boulevard, Flagler Beach, Florida. This is found in Petitioner's Exhibit No. 12 admitted into evidence which carries a date of January 25, 1991 and another date referred to as a "filed date" of May 2, 1990. As alluded to before, Carol Nelson was served with the emergency order and notice to show cause in DOAH Case No. 91-0682. Her husband was also served on January 25, 1991. Both parties were served at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Corroboration of service on the corporation by certified mail in DOAH Case No. 91-0681 was made in remarks from Eric Nelson to Mr. Cole in which Nelson identified that the service was perfected by certified mail and the return receipt dispatched. The corporation's address and that of the Nelsons at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida is the same. Based upon the remarks by Eric Nelson in his testimony, the property in question was never owned in his proper person or by his wife. He did acknowledge that at one time Windy Shores Trading Post, Inc. owned the property in question and that ownership in the Windy Shores Trading Post, Inc. was held with his wife. Nelson points out that he and his wife never did business as Layton Apartments. From Eric Nelson's testimony and other matters presented it appears that Windy Shores Trading Post, Inc. took ownership from Mr. Midkiff. In turn the transaction of May 14, 1990, took place in which Windy Shores Trading Post, Inc. sold out to the Respondent corporation. Eric Nelson in his testimony said that he and Carol Nelson his wife do not work for the corporation or have any "statutory" tie to the corporation. He says in his testimony that he and his wife divested association with the corporation through the change of ownership of May 14, 1991. He describes himself as an independent subcontractor for the corporation as it relates to the building in question. Eric Nelson states that he has not collected rent at the property. He reiterates that his wife is not an employee of the property. He makes the comment that his mother had asked his wife to collect rent for the mother until the mother had returned from her trip to Canada. He indicates that some other "agent" collects rent for the mother on the property in question. He identified the fact that on January 25, 1991, that his mother was in Florida the latter the part of the afternoon and was at 2036 South Ocean Shore Boulevard between 10 a.m. and noon briefly and as he describes it "in and out." Eric Nelson identified that he sleeps at 2036 South Ocean Shore Boulevard at times and that the corporation gets mail there. Contrary to Eric Nelson's protestations, he and his wife during the relevant times associated with the December 20, 1990 and January 22, 1991 inspections referred to in the notice to show cause in DOAH Case No. 91-0682 were serving as managers, and appointed agents of the corporation, as defined at Section 509.013, Florida Statutes (1990 Supp.). Eric Nelson in his behalf and that of his wife conceded to the factual observations of the January 22, 1991 inspection performed by Joseph Pitrowski and found within Petitioner's Exhibit No. 15 admitted into evidence. They coincide with the earlier inspection of December 20, 1990 by Mr. Steinke. Testimony of Mr. Pitrowski was given as it relates to accusations made against the corporation at a time where counsel for Petitioner had announced that the Pitrowski testimony would relate to the corporation and not to the Nelsons. Under the circumstances, Mr. Nelson as representative for himself and his wife departed the hearing room before Pitrowski testified. Therefore, with the exception of the written report rendered by Mr. Pitrowski found within Petitioner's Exhibit No. 15 admitted into evidence and related to an inspection of January 22, 1991, it would be inappropriate to find facts against the Nelsons based upon the Pitrowski testimony. Likewise, that testimony by Mr. Pitrowski related to the corporation has no utility in that the corporation has never requested a formal hearing to contest the accusations placed against it when examining the present record.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is recommended that a Final Order be entered which absolves the Nelsons of the allegations under Item no. 1 in the appendix; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 2; fines the Nelsons in the amount of $250 for the violation established in Item no. 3; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 4; fines the Nelsons in the amount of $250 for the violation established in Item no. 5; absolves the Nelsons of the violation alleged in Item no. 6; fines the Nelsons in the amount of $500 for the violation established in Item no. 7; absolves the Nelsons of the violation Item no. 8 and fines the Nelsons in the amount of $250 for the violation established in Item no. 9. No disposition is suggested concerning the corporation, it having been concluded that the corporation has not requested a formal hearing. In that respect the case is returned to the referring agency for disposition in DOAH Case No. 91-0681 without commenting on the merits of the allegations made against the corporation. RECOMMENDED this 4th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 4th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0681 The following discussion is made of the Petitioner's proposed fact-finding. Paragraphs 1 and 2 with the exception of the last sentence of Paragraph 2 are subordinate to facts found. The last sentence of Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 10 are subordinate to facts found. Paragraph 11 is subordinate to facts found with the exception of the discussion of the violations as they pertain to the corporation which alleged violations have not been challenged by the corporation. Concerning Paragraph 12, remarks attributable to Inspector Pitrowski are rejected because they were made outside of the presence of the Nelsons at a time when counsel for Petitioner had announced that the case related to the Nelsons had been concluded. Paragraph 13 is subordinate to facts found. COPIES FURNISHED: Barbara Palmer, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Emily Moore, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Eric Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2038 South Ocean Shore Boulevard Flagler Beach, FL 32136
The Issue Whether Petitioner was wrongfully terminated from her position as a hostess with Respondent because of her handicap, in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, a 47-year-old female, was hired by Respondent on or about July 15, 2003, as a part-time hostess at Respondent's restaurant in Cocoa Beach, Florida. The understanding at that time was that she would be called in to work three to four hours a day, three to four days a week, as a leased, at-will employee from SkilStaf. SkilStaf would be the employer of record for wage and payroll reporting purposes. Respondent, BB & D of Cocoa Beach, Inc., is a franchisee of Perkins Restaurant and Bakery and is an employer under the provisions of Chapter 760, Florida Statutes (2003). Petitioner first reported for work on July 17, 2003, and received training as a hostess/cashier by Debra Russell, associate manager, and received the same information about the job requirements, duties, and benefits given to all new hires. During her training, Petitioner was advised that in addition to seating guests and operating the cash register, a hostess would be required to bus tables when the restaurant was busy and the other staff was in need of help, although this requirement was not listed on the printed job description. Petitioner did advise Respondent that she had a disability and that she required a reasonable accommodation in order to perform her job. She stated that several years before she had undergone back surgery as a result of an injury that was not job related and could not perform a job that required heavy lifting. Petitioner advised Russell that she could not bus tables because it would require heavy lifting. Russell asked Petitioner to provide Respondent with a doctor's note advising them of the nature of her disability and what accommodations she required. Petitioner continued to work as a hostess at the Perkins Restaurant through July 22, 2003, and performed the job satisfactorily. She was not asked to bus tables during this period. Petitioner was not called back to work as a hostess after July 22, 2003, and did not receive any notification that she was terminated. Petitioner obtained a note from her physician dated July 28, 2003, which indicated that she was capable of working four to five hours a day as a hostess. This evidence is hearsay. In addition, it is not convincing that Petitioner turned in a copy of the note to management anytime after that date. She tried to talk to management about her status, but was unsuccessful. Although Petitioner did not prove that she is a disabled person, she was perceived to be disabled by her employer. Petitioner testified that she talked to Russell some time in early August. Petitioner claimed that Russell said that she had talked to the owner who said that he did not think Petitioner should be working as a hostess, but should get a desk job sitting down. Russell denied making such a statement. No other evidence was offered to support this statement. Therefore, said statement is uncorroborated hearsay and unreliable, and will not be relied upon as a finding of fact. Petitioner presented evidence that since July 2003, she has been unemployed, in spite of her making reasonable efforts to obtain suitable part-time employment. Respondent demonstrated that Petitioner sought to have several days in a row off after working only three days. Petitioner worked six shifts total during her employment with Respondent. Respondent needed two other part-time hostesses for the other shifts because the restaurant was open seven days a week, 24 hours a day, for a total of 21 shifts per week. Respondent demonstrated that the summer business that year was slower than projected and never picked up. The restaurant business is labor-intensive and accounts for 30 to 40 percent of overhead costs. In order for management to control costs, it must cut back on employees. Petitioner was involuntarily terminated because sales were underperforming projections and labor costs were being controlled by a reduction in force. Petitioner was unable to prove that her termination was the result of her disability or perceived disability and that Respondent's proffered reason for her termination was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice with prejudice. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Shahrooz Banapoor BB & D of Cocoa Beach, Inc. 5590 North Atlantic Avenue Cocoa Beach, Florida 32931 Anne E. Dorfler 700 North Courtney Parkway Apartment 524 Merritt Island, Florida 32953 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was the subject of an unlawful employment practice by Respondent based on disability.
Findings Of Fact On February 7, 2011, an Order Granting Continuance and Rescheduling Hearing was entered setting the day, time, and location of the final hearing in this case. The Order was mailed to the last known, valid address of the Petitioner. The Order was not returned. On February 16, 2011, Petitioner filed a letter in this case indicating she was aware of the date, time, and location of the rescheduled final hearing. This cause came on for hearing as noticed. After waiting more than 15 minutes, Petitioner failed to appear to prosecute her claim. There has been no communication from the Petitioner indicating that she would not be attending the final hearing. Petitioner has the burden to establish by a preponderance of the evidence a violation of chapter 760. In this case, Petitioner failed to appear at the hearing after proper notice of the hearing was issued. Because Petitioner failed to appear, no evidence that Respondent violated chapter 760 was presented. Absent such evidence, Petitioner has not carried her burden of proof in this matter and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Harold R. Mardenborough, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Joyce Herring 501 South Main Street Havana, Florida 32333 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m. Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent. William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley. On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store. Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home. During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face. Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence. Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination." Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument. Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report. Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working. Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter. Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store. On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy. From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from 7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon. A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store. When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds. On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory. The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Hurley's Petition for Relief DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Steven David Brown, Esquire LeClair Ryan 951 East Byrd Street Richmond, Virginia 23219 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Republic Parking System, Inc., operates paid parking lots and facilities at a variety of public and private locations. One of its locations is at the Northwest Florida Beaches International Airport in Panama City, Florida. As part of its operations, Republic maintains an equal- employment opportunity, anti-sexual harassment and non- discrimination policy. The policy also prohibits harassment at work by anyone, including supervisors, co-workers or customers. The evidence showed that the policy is disseminated to its employees in its Employee Handbook and is consistently enforced by the company. Under its Employee Handbook the company generally follows a progressive-disciplinary policy for violations of company policy, with increasing penalties ranging from reprimands to dismissal. However, certain violations of policy, such as use of abusive language or being discourteous to customers, supervisors or fellow employees, may result in immediate dismissal. In October of 2010, Petitioner, Joni Barkley, an African-American, was employed by Respondent as a parking booth cashier at the international airport in Panama City. Upon employment, Ms. Barkley received a copy of Republic Parking System, Inc.’s Employee Handbook and signed an acknowledgement of her receipt of that handbook. She was aware of the company’s policy regarding discrimination and harassment. During her tenure and prior to the end of December 2013 or early 2014, Ms. Barkley had no complaints of racial discrimination or harassment towards her. On the other hand, she had been verbally counseled about a remark she made that co- employees had interpreted as racially motivated. Respondent also had been disciplined for repeated tardiness. Additionally, during her employment, Ms. Barkley was known for misinterpreting statements of others and believing innocent statements or actions by others were directed at her. Towards the end of December 2013 or early January of 2014, one of Ms. Barkley’s co-workers, Eva Bishop, a Caucasian, showed her co-workers, including Ms. Barkley, several photographs and a video of her trip to Alaska. Among the photos she showed to everyone was a picture of a Ketchikan Native American clan house. The picture depicts a rustic blue wooden structure with several Alaskan Native American symbols painted on it to form a face with an open mouth for the front entry. Three large Native American totem poles dominate the front of the structure and are placed at the front corners and in the middle over the front entry way to the structure. When Ms. Barkley was informed that the photo was of a clan house, she mistakenly believed that the photo was related to the Ku Klux Klan and thought Ms. Bishop was referring to a “Klan” house. Unfortunately, Ms. Barkley maintained the correctness of her mistaken belief even though several co- workers who had seen the same picture tried to explain the picture to her. Through January of 2014, Ms. Barkley and Ms. Bishop had several arguments and animated discussions. Ms. Barkley insisted that Ms. Bishop was a member of the Ku Klux Klan and accused her of the same, with her rank in the Klan growing from member to president of the local chapter. She also insisted that the picture Ms. Bishop had shown Petitioner was related to the Ku Klux Klan. Due to her mistaken beliefs, Ms. Barkley became very anxious and fearful of Ms. Bishop. On February 5, 2014, Ms. Barkley first reluctantly complained about Ms. Bishop to Kim Hall, Republic’s Assistant Manager and Ms. Barkley’s immediate supervisor. She complained that Ms. Bishop had used racial slurs in talking with her and had discussed with her the Ku Klux Klan. Ms. Hall immediately took Ms. Barkley to Kelly Blum, Republic’s General Manager at the Panama City airport. Ms. Barkley made the same complaint, but indicated that she “loved” Ms. Bishop and did not want to see her fired. Shortly thereafter, Ms. Blum met with Ms. Barkley and Ms. Bishop together, and told them that they could not fight with each other at work. At the conclusion of the meeting, Ms. Barkley and Ms. Bishop hugged, apologized to each other, said they loved each other and told Ms. Blum they could work together. There was no evidence that demonstrated the manner in which Ms. Blum investigated or handled Ms. Barkley’s complaint was intimidating, harassing or discriminatory. Ms. Blum also stated that she would try to avoid scheduling Ms. Barkley and Ms. Bishop on the same shift. However, due to limitations in personnel, Ms. Blum could not ensure that the two employees would not be on the same shift. Unfortunately, sometime after this conversation, Ms. Barkley worked two hours with Ms. Bishop because Ms. Bishop’s replacement for the next shift was late or couldn’t make it in to work due to bad weather. The manager that day offered to stay with Ms. Barkley, but Ms. Barkley said it would be alright and that she could work with Ms. Bishop present. The evidence did not demonstrate that the one-time, unanticipated shift overlap was in retaliation for Ms. Barkley’s earlier complaint. Over the next several days and notwithstanding their mutual apologies, Ms. Barkley and Ms. Bishop continued to argue with each other, create a hostile work environment and use abusive, profane language. Eventually, Ms. Barkley called the F.B.I. and continued to accuse Ms. Bishop of being a racist and a member of the Ku Klux Klan. At some point, Ms. Barkley insisted on showing Ms. Bishop some books about the Ku Klux Klan, again accused Ms. Bishop of being a member of the Ku Klux Klan, and indicated that Ms. Bishop’s connection to the Klan scared her. Ms. Bishop told Ms. Barkley, in essence, that the KKK hung niggers, and asked why Ms. Barkley thought she would take a similar action. Ms. Barkley responded and, in essence, referred to Ms. Bishop as a white cracker bitch who would hang niggers from trees and that she better hang her with her pearls on. As a consequence, Ms. Blum looked into the continued behavior and reported her concerns about Ms. Barkley’s and Ms. Bishop’s behavior to her supervisor, Regional Manager Linda Kelleher. Ms. Kelleher requested that Republic’s human resources department investigate the matter. Again, there was no evidence that demonstrated this inquiry was intimidating, harassing or discriminatory towards Ms. Barkley. Jan Veal, Republic Parking System, Inc.’s Director of Human Resources, interviewed all witnesses, including Ms. Barkley, Ms. Bishop, Ms. Williams, Ms. Hall, Ms. Blum, and Ms. Kelleher. During the investigation, Ms. Bishop admitted using racial epithets towards Ms. Barkley. Based upon Ms. Bishop’s admission, Ms. Bishop was suspended, with pay, pending the conclusion of the investigation. Shortly thereafter, following Ms. Veal’s interview with Ms. Barkley and the other witnesses’ report of the racial remarks of Ms. Barkley, Ms. Barkley also was suspended with pay, pending the conclusion of the investigation. Such actions were reasonable since both Ms. Bishop and Petitioner were at fault in their behavior towards each other. On February 25, 2014, Republic Parking Systems, Inc., terminated Ms. Barkley’s employment, having concluded that she used offensive and threatening language of a racial nature including the use of profanities and creation of a hostile work environment in violation of company policies. Republic Parking System, Inc., terminated Ms. Bishop’s employment on the same day for the same reasons. As such, the evidence was clear that both employees engaged in similar behavior and were disciplined in the same manner. Both were terminated. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on race or retaliation when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of August, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2015. COPIES FURNISHED: Joni Marie Barkley 15221 Banks Drive Southport, Florida 32409 (eServed) Jan Veal Republic Parking System, Inc. Suite 2000 633 Chestnut Street Chattanooga, Tennessee 37450 James Scott McDearman, Esquire Grant Konvalinka and Harrison, P.C. 633 Chestnut Street Chattanooga, Tennessee 37450 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
