The Issue The issue is whether Petitioner was subject to an unlawful employment practice by Respondent, Meals on Wheels, Etc., Inc., on account of his race and disability, as a result of Respondent's maintenance of a hostile work environment, or as retaliation to his opposition to an unlawful employment practice, in violation of section 760.10, Florida Statutes.
Findings Of Fact As its name implies, Respondent is a non-profit charitable organization engaged in the business of providing free meals, transportation services, and related assistance to senior citizens in the Sanford, Florida, area. Petitioner is a 64-year-old black male of Jamaican origin. He worked as a driver for Respondent from August 13, 2012, until October 23, 2014, when he was discharged for violating a company policy. As a condition of employment as a driver, Petitioner was required to submit a medical fitness form regarding his current medical condition. In the form filed on July 30, 2012, he denied having any medical issues except non-insulin dependent diabetes, which is controlled by diet. See Ex. 21. An updated form was submitted on August 25, 2014, reflecting no change in his medical condition. Id. No other medical records were submitted to substantiate any other medical condition. When he interviewed for the position, Petitioner did not tell Respondent that he needed an accommodation for his diabetes or that he had any work restrictions. As such, management never considered Petitioner to have a disability. Petitioner also provided a post-employment medical questionnaire on August 8, 2012, which stated that he had diabetes but that it was controlled by diet. Id. No other injuries, illnesses, or health abnormalities were reported. As a driver, Petitioner was expected to adhere to Respondent's safety rules. To ensure compliance with the rules, shortly after being hired, Petitioner was required to read, and then sign a statement acknowledging that he understood, the organization's General Policies. See Ex. 1, p. 4. He was also required to acknowledge receipt of its Employee Handbook containing the Safety Policies and Procedures. See Ex. 3. In addition, Respondent's Transportation Coordinator, Mark Taylor, conducted periodic refresher training sessions with all drivers, including Respondent. One of Respondent's most significant safety rules, if not the most significant, is a rule that requires drivers to provide door-to-door service. It provides in relevant part that "[u]pon arrival at a client's home, [a driver must] go to [the] door and knock. If the client needs help, you will be right there to assist." Ex. 1, p. 1, ¶ 6. This rule is intended to promote client safety and to ensure, to the extent possible, that Respondent will not face legal exposure because, for example, a client falls down while walking unassisted to or from the vehicle. To comply with the above rule, drivers are required to get out of the van, go to the front door, knock, and then assist the client walking to the van. This is because the clients are elderly, some use walkers, and they need assistance from the driver while getting to and from the van. On August 21, 2014, Petitioner signed another statement acknowledging that he understood the policy, he agreed to follow it at all times, and he understood that "[t]ermination will result in not following this important safety rule." Ex. 7. As a corollary to the above safety rule, drivers are instructed that they should never honk the vehicle's horn when they arrive at a client's home. Instead, they should get out of the vehicle and go to the front door of the residence. Petitioner was specifically told about the no-honking rule at two safety meetings. The incident underlying Petitioner's discharge occurred on the morning of October 23, 2014. Petitioner was told to pick up Angelo Rosario and transport him to an appointment. The client is in his 80s, suffers from Alzheimer's disease, and uses a walker. He resides in a mobile home-type community with his daughter; and the driveway in front of the mobile home is unpaved with exposed roots making it easy to trip or fall. Although Mr. Rosario was not one of his regular clients, Petitioner had picked him up at least 12 times in the previous 30 days and was familiar with his condition and the area in which he lived. The testimony describing the incident is conflicting. However, the accepted testimony shows that Petitioner arrived at the Rosario residence while Petitioner was on a personal cell phone call to his sister. When he finished the call, Petitioner blew the horn to alert the client that he was there. The honking was loud enough to annoy Rosario's neighbor who approached Petitioner's vehicle complaining about the noise. Suspecting that the neighbor's concern might cause a problem, Petitioner immediately telephoned Mr. Taylor and told him that he had blown the horn and anticipated that someone might be calling him with a complaint. Mr. Taylor told Petitioner that honking the horn was inappropriate, it violated an important safety rule, and he could not just sit in the van waiting for the client. Petitioner admits that during the telephone call, he shouted at Mr. Taylor and claimed he was unaware of the rule. After Mr. Taylor instructed Petitioner to go to the front door to pick up the client, Petitioner exited the vehicle and escorted the client to the van. After speaking with Petitioner, Mr. Taylor immediately telephoned the client's daughter to get her version of events. Mr. Taylor learned that honking had recently occurred rather frequently at the client's home, and he believed that Petitioner was the responsible driver, as Petitioner had transported the client at least 12 times during the previous 30 days. Mr. Taylor immediately reported the incident to the Executive Director, Sherry Fincher, who evaluated the matter, and then decided to terminate Petitioner for violating the organization's most important safety rule. Notwithstanding Petitioner's claim to the contrary, it is the Executive Director alone, and not Mr. Taylor, who makes the decision to terminate an employee. A memorandum was prepared by Ms. Fincher that day indicating that Petitioner was being terminated "due to not following agency policies regarding door-to-door pick up of clients[,] . . . one of the most important policies to ensure the safety of all clients." Ex. 20. This was consistent with Respondent's policy, and one that Petitioner clearly understood. Petitioner's race and diabetic condition played no role in the decision. Petitioner's Employment Charge of Discrimination was filed one month later. Prior to that time, there is no competent evidence that Petitioner had ever complained to Taylor or Fincher about any discriminatory practices by the organization. Since the inception of this case, Petitioner has contended that he has a disability within the meaning of the law. At hearing, however, he acknowledged that his diabetic condition does not affect any major life activity. To support his disability discrimination claim, he testified that on an undisclosed date in 2014, he asked Mr. Taylor if he could eat meals or snacks at designated times because of his diabetic condition but was told he could not. The accepted testimony shows, however, that Mr. Taylor advised him that he could eat whenever necessary, as lunch and break hours are not set in stone. To avoid a drop in his blood sugar, Petitioner was told that he was free to eat or drink something at any time, or even bring a bag lunch with him while driving his routes. Even assuming arguendo that Petitioner had a disability, which he does not, the contention that a disability formed the basis for an unlawful employment practice must fail. Petitioner also contended that Belinda Stum, a white female lead driver, was treated differently than he and was given more "leeway" when she violated a rule. However, the only evidence concerning a rule violation by Ms. Stum involved a different rule. After a client accidentally slipped while being assisted out of the van, Ms. Stum immediately reported the incident to Mr. Taylor and then filed a completed incident report. Other than Ms. Stum, Petitioner was unable to specifically identify any other similarly-situated employees outside his protected class (or even ones within his own class) who were allegedly treated differently than he. Although a client testified at hearing that on several occasions she had observed Ms. Stum sitting in her van when picking up clients, even if this is true, the client admitted that she never reported this to anyone at Respondent's organization so that the alleged violation could be investigated and disciplinary action taken, if appropriate. Petitioner also contends he was subjected to a hostile working environment due to his race and disability. He claimed that Mr. Taylor, a white male, called him "boy," required him to answer "yes sir," and would gesture a "cut throat" sign towards him, threatening him to keep his mouth shut. This assertion was not corroborated by any other evidence, and Mr. Taylor denied the charge. The testimony of Mr. Taylor is accepted as being more credible on this issue. Assuming arguendo that he had a disability, there is no evidence whatsoever that Petitioner was subjected to a hostile working environment due to his diabetic condition. Finally, there is no evidence regarding the charge that Petitioner was terminated in retaliation for engaging in a protected activity. Indeed, Petitioner submitted no credible proof that he complained to management regarding any discriminatory practices that precipitated the alleged retaliation, other than "standing up for his rights" on the day he was terminated, and Taylor and Fincher credibly testified that they were unaware of any such complaints. Complaints made at hearing that he is still owed money and was never paid for training are not germane to this dispute. Petitioner is now working part-time as a driver for a retirement center in the Sanford area. He says he is also employed as a substitute teacher for the Seminole County School Board. Both jobs equate to full-time employment. According to evaluations and testimony at hearing, Petitioner was considered a "good worker," "likeable," and someone who "did a pretty good job." While his evaluations showed he met expectations, his last evaluation noted that he needed improvement in following orders. Except for being "written up" one time for being late to work, Petitioner had no other disciplinary action.
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, with prejudice. DONE AND ENTERED this 24th day of November, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 24th day of November, 2015.
The Issue Whether Petitioner was discriminated against by the Respondent based on race, and/or retaliated against due to the filing of a charge of discrimination with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Ronald Wilson, is an African-American male. Petitioner was employed with TMH on June 21, 1999, as an environmental services technician. On January 19, 2001, Petitioner received a disciplinary corrective action for discourtesy to a hospital visitor who had complained about Petitioner’s rude and overbearing behavior towards her in a visitor’s waiting area. After admitting the essential facts, Petitioner was suspended for two days for this infraction. On June 27, 2001, Petitioner filed a charge of discrimination with the FCHR, alleging he was wrongfully suspended because of his race. On September 5, 2001, Petitioner was told that his loan application with TMH Federal Credit Union had been denied. Petitioner told a credit union employee, Grace Chambers, that “God doesn’t appreciate people being treated this way” and “Someone is going to have some bad luck,” or words to that effect, when she advised him that his application had been denied. Although Petitioner was speaking metaphysically and did not intend to threaten Ms. Chambers, Ms. Chambers was upset by Petitioner’s comment, perceived Petitioner's comment as a threat and reported it to her supervisor, Marion McCaskey, President of the TMH Credit Union. McCaskey and Chambers, in turn reported Petitioner's threat to Charles Garner, Director of Security at TMH. Ms. McCaskey also reported that Petitioner was known for being unduly persistent in obtaining approval for a loan to the point she had become uncomfortable, albeit not physically threatened, in dealing with Petitioner. Mr. Garner reported Petitioner's conduct to his supervisor, Ron Dorsey. On September 6, 2001, Mr. Dorsey filled out a disciplinary action form recommending Petitioner's discharge because of his comment to Ms. Chambers. Because of Petitioner’s disciplinary history of insubordination and discourtesy, the recommendation was approved by TMH Human Resources, and Petitioner was given notice of his discharge on December 11, 2001. TMH's policy prohibits discourtesy to visitors and other employees, and threats to co-workers. Both of these violations are grounds for discharge. Petitioner produced no evidence that any other non- minority employee was charged with breaking these rules and was treated better. Without such evidence, Petitioner failed to establish any direct evidence that his suspension and discharge were racially motivated. Likewise, Petitioner failed to establish any circumstantial evidence of racial discrimination, since Petitioner’s statements to Ms. Chambers could arguably be considered a threat directed towards her, and there was no evidence that Ms. Chambers’ reaction was not genuine. Petitioner produced no evidence that Dorsey, Garner, Chambers, or McCaskey had notice or knowledge of his charge of discrimination when he was discharged. Therefore, Petitioner has failed to establish that he was discharged on September 11, 2001, in retaliation for filing the charge of discrimination on June 27, 2001. Petitioner produced no evidence that he suffered any past or future wage loss as a result of his discharge from TMH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Ronald Wilson 816 Cochran Drive Tallahassee, Florida 32304 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 16th day of April, 2015.
The Issue The issue in this case is whether Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2010).
Findings Of Fact At the hearing, the parties stipulated to the facts numbered 1-4, as follows: Petitioner was terminated from his employment with Respondent on March 13, 2009. Petitioner's deadline for filing his complaint with the Florida Commission on Human Relations (FCHR) was March 14, 2010. Petitioner emailed a Technical Assistance Questionnaire to the FCHR on February 18, 2010. Petitioner signed an Employment Complaint of Discrimination and dated it March 24, 2010. In addition to the stipulated facts, the undersigned noted that the Complaint is stamped received by the FCHR at 10:48 a.m. on March 25, 2010.
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 Petitioner's claim of discrimination. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 10th day of December, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lacey Hofmeyer, Esquire Danielle Garno, Esquire Greenberg Traurig 1221 Brickell Avenue Miami, Florida 33131 James Jean-Francois, Esquire Law Offices of James Jean-Francois, PA 6100 Hollywood Boulevard, Suite 211 Hollywood, Florida 33024
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.
Findings Of Fact Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay. Petitioner apparently declined the position. When she did so, Respondent terminated her. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida. ROBERT D. MEALE 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 16th day of March, 1989. COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Latricia W. Dukes 4189 Tatum Street Orlando, FL 32811 Gale Brandy Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue Whether Respondent 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, Sanford Housing Authority (Respondent), committed an unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Jimitre Smith (Petitioner), be granted.
Findings Of Fact Petitioner is a female who was pregnant during a portion of the time events occurred related to her employment with Respondent. At the time of Petitioner’s initial employment with Respondent, the Sanford Housing Authority operated public housing complexes within its geographical area pursuant to a HUD program to provide housing assistant to low income, qualified residents. At some point, the Orlando Housing Authority stepped in to take over the management of Respondent’s properties. Due to the deteriorating condition of Respondent’s properties, residents were provided Section 8 vouchers so that they could obtain private rental opportunities. In the midst of the transition period, Petitioner’s employment with Respondent ended. Petitioner was initially hired by Respondent to replace a receptionist who was out on maternity leave. The assignment was part-time and temporary. It began on or about March 31, 2010. When the receptionist returned to work, Petitioner was offered a second part-time job as leasing clerk. Although the record is not clear when this second job started, it is undisputed that Petitioner sought and was granted maternity leave due to her own pregnancy on September 27, 2010. It was during this time period that the Orlando Housing Authority stepped in to take over Respondent’s responsibilities. Mr. Fleming, an employee of the Orlando Housing Authority, served as the Interim Executive Director for Respondent. In November 2010 residents were advised of the plan to demolish the substandard housing units. Since the units would not be leased, a leasing clerk was no longer required. Although Petitioner had been told she could return to work after her maternity leave, there was no position available for her at that time. Once the Orlando Housing Authority took over management, all of the day-to-day work was assigned to its employees. Respondent kept a handful of maintenance workers, but there is no evidence Petitioner sought and/or was denied that type of job. Petitioner claimed she should have been offered or allowed to apply for a job with the Orlando Housing Authority. There is no evidence that entity was required to hire her or that it refused to hire her because of her gender or pregnancy or that Respondent refused to recommend Petitioner for employment due to her gender or pregnancy. When Petitioner was cleared for return to work in December 2010, there was not a job to return to as Respondent did not have a position for her. There is no evidence that Respondent hired anyone during or after Petitioner’s pregnancy or that Petitioner was refused a job that she was qualified to perform. Had a suitable job been available, it most likely would have come through the Orlando Housing Authority. In January of 2011, Respondent formally eliminated Respondent’s part-time position through a reduction in workforce decision. At that time, Petitioner received a severance payment from Respondent and an offer for other job training opportunities.
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 no cause for an unlawful employment practice as alleged by Petitioner, and dismissing her employment discrimination complaint. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Jimitre Rochelle Smith 804 South Bay Avenue Sanford, Florida 32771 Ricardo L. Gilmore, Esquire Saxon, Gilmore, Carraway and Gibbons, P.A. Suite 600 201 East Kennedy Boulevard Tampa, Florida 33602 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
