Findings Of Fact 1. Petitioner (Randolph) is an African-American female. 2. Petitioner was hired by Respondent on June 2, 1997, and was terminated by Respondent from her employment on September 30, 1997. 3. When initially hired, Petitioner’s official employment class title was Other Personnel Services (OPS) Paralegal Specialist. 4. On July 1, 1997, approximately one month after her date of employment, Petitioner’s official employment class title was changed to Administrative Secretary and Petitioner’s pay plan status was changed from OPS to Career Service. 5. On September 1, 1997, Petitioner's class title was reclassified to Paralegal Specialist. 6. From July 1, 1997, until the date of her termination, Petitioner was employed in a probationary status by DOAH with her primary job responsibilities being that of a proofreader. 7. Probationary employees are not entitled to progressive discipline and can be terminated at will pursuant to Florida Administrative Code Rule 60L-36.005. 8. Ann Cole, the clerk of DOAH, interviewed all candidates for the newly created proofreader position. 9. There were several applicants for the proofreader position and after a series of tests and interviews Ann Cole determined that Petitioner was the best applicant for the proofreader position and Petitioner was hired for the job. 10. Approximately one month after Petitioner was hired, a second proofreader (Dr. Rappendelli) was hired. Dr. Rappendeli is a white female. 11. Both Petitioner and Dr. Carol Ripandelli were supervised at DOAH by Ann Cole. ATTENDANCE HISTORY 312. During the first month of her employment Petitioner shared a work area in DOAH’s mailroom with current DOAH employee Elma Moore, an African-American female. 13. Elma Moore typically arrived at work between 7:00 and 7:15 a.m. even though the required start time for employees of the clerk’s office was 8:00 a.m. 14. Elma Moore was able to directly observe the times during which Petitioner arrived at work. Ms. Moore noted that Petitioner reported to work forty-five minutes late on her first day. Ms. Moore further noted that Petitioner would often be late. 15. Elma Moore was relocated to another part of the clerk’s office when Dr. Rappendelli was hired. 16. Elma Moore, even from her new workstation, continued to be situated such that she was able to observe the times at which Petitioner customarily arrived at work. 17. Elma Moore testified that during the four month period that Petitioner worked for DOAH, at least two to three times each week, Petitioner would arrive at work approximately ten to thirty minutes beyond the mandatory 8:00 a.m. start time for employees. 18. The testimony of Elma Moore is further corroborated by the affidavit of Deanna Hartford. 19. Ms. Hartford, who was the Deputy Clerk Supervisor for DOAH during Petitioner’s period of employment, stated that she observed Petitioner arrive to work late, without notice, on several occasions during her OPS employment and during her career service probationary employment. 20. Ms. Hartford stated in her affidavit that around the first week of September 1997 she was asked by Ann Cole to observe Petitioner’s attendance. Ms. Hartford noted that during this period of observation Petitioner arrived to work at’ the following times on the dates as indicated: September 8, 1997, 8:20 a.m.j; September 9, 1997, 8:25 a.m.; September 10, 1997, 8:10 a.m.; and September 17, 1997, 8:20 a.m. 21. Ms. Hartford reported to Ann Cole, Petitioner's supervisor, that Petitioner was frequently late for work. 22. This is consistent with Elma Moore’s testimony that Petitioner, at least two to three days per week, was customarily late for work in excess of ten minutes. 23. Petitioner attempted to contradict the testimony of Elma Moore and the affidavit of Deanna Hartford by testifying that she was told by her supervisor, Ann Cole, to make up her tardy time thereby excusing the fact that she was habitually late for work. 24. Ms. Cole stated the importance of proofreaders being punctual to work, and testified that she and Petitioner had at least two meetings where they discussed Petitioner’s tardiness issue prior to her termination. 25. Ms. Cole stated that she spoke with Petitioner about her timesheet and attendance, and the need for Petitioner to tell her when she is late and how she plans to make up her time. 26. Ms. Cole stated that Petitioner’s communication regarding her promptness and plans to make up time never improved. 27. Ms. Hartford stated that she never observed Petitioner disclose her late arrivals to her supervisor, Ms. Cole. On more than one occasion, Ms. Hartford stated, she reported Petitioner’s tardiness to Ms. Cole, who indicated she was unaware of the late arrival. PHONE USE 28. Unlike some of the other jobs in the clerk's office, the proofreader’s duties and responsibilities did not require the utilization of the telephone. 29. Elma Moore stated that during the time that she shared an office with Petitioner, her desk was in close proximity to Petitioner’s desk and that on several occasions she noticed that Petitioner was talking on the telephone. 30. Elma Moore stated that Petitioner was using the telephone for personal calls frequently. 31. Elma Moore further testified that she knew that the responsibilities and duties of the proofreader did not require Petitioner to use the telephone. 32. Deanna Hartford noted in her affidavit that she personally observed that Petitioner was always on the phone. 33. Ms. Hartford also noted in her affidavit that other employees at the Clerk’s office had complained to her about Petitioner’s excessive use of the telephone. 34. Ms. Hartford advised her supervisor Ann Cole about Petitioner’s excessive phone use. 35. In response to the complaint about Petitioner's excessive use of the telephone, Ms. Cole contacted DOAH’s information services department and requested that they audit all of the telephone extensions for the clerk’s office. 36. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 85.5 outgoing phone calls. 37. Petitioner, however, had 294 outgoing calls attributed to her extension during this period. Dr. Carol Ripandelli, the other proofreader, had 79 outgoing calls attributed to her extension during this same period. 38. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 1.6 outgoing calls that exceeded ten minutes in duration. 39. The number of outgoing calls exceeding ten minutes in duration that were attributed to Petitioner's extension during the audit period totaled thirteen. Dr. Carol Ripandelli had only two outgoing calls that exceeded ten minutes in duration attributed to her extension during the audit period. 40. Petitioner denied having made the number of phone calls attributed to her extension. Petitioner also charged that it was possible that other employees could have made outgoing calls from the phone on Petitioner’s desk. 41. Elma Moore testified that it was neither the practice nor the custom of employees of the clerk’s office to regularly use the telephone of other employees. INITIATIVE 42. Deanna Hartford, in her affidavit, noted that in July of 1997 she was asked by Ann Cole to provide additional training to the proofreaders. 43. Petitioner and the other proofreader were instructed to inform Ms. Hartford when they were caught up with their work so that the additional training could be provided. 44. Dr. Carol Rappendeli, the OPS proofreader, sought and received additional training in several areas including filing, assisting in the quarterly file purge and destruction, outgoing docketing procedures, and maintaining the Florida Administrative Code supplements. 45. Petitioner never sought additional training as requested. 46. Ann Cole observed Petitioner nodding off on at least three occasions while in an important proofreading standards meeting. 47. Ms. Cole observed Petitioner cutting coupons at her desk the morning of September 22, 1997, during business hours. 10 48. Elma Moore also testified to the fact that Petitioner, during business hours would frequently work on a personal book when she wasn’t proofreading. DISRUPTIVE AND RUDE BEHAVIOR 49. Ms. Cole testified that along with the attendance problems and telephone usage, Petitioner also had attitude problems. 50. On two occasions, Petitioner felt the need to apologize for rude comments made to her supervisor, Ms. Cole. 51. Ms. Cole observed rude behavior by Petitioner directed toward Dr. Ripandelli when they were discussing proofreading on a particular order. 52. Ms. Cole stated that when Petitioner gets in one of her moods, teamwork between Petitioner and Dr. Ripandelli is ineffective. 53. Ms. Cole testified that she had to speak with Petitioner about her radio and that it was so loud it caused a disturbance in the break room. 54. Dr. Ripandelli testified that Petitioner’s radio was so loud that she bought herself headphones in order to drown out Petitioner’s radio. i 55. In contrast, Ms. Cole testified that Dr. Ripandelli gets along with all the judges and that Dr. Ripandelli interacts fine with her. TERMINATION 56. Ms. Hartford stated that Petitioner never discussed with her any need to accommodate her for a disability or for her religion. 57. Ms. Hartford further stated that Petitioner never mentioned that she was being discriminated against for any reason. Ms. Hartford never observed Petitioner walk with a limp, or have sores or bandages on her legs. 58. Petitioner was terminated on September 30, 1997, due to her chronic tardiness, excessive use of the telephone, and her general failure to demonstrate initiative.
Conclusions Petitioner: Ms. Audrey Randolph, Pro Se 2644 Edgewood Avenue, West Jacksonville, FL 32209-2431 904-713-9913 For Respondent: Mr. Linzie F. Bogan, Esquire Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 850-414-3300 ext. 4650
Recommendation 29 In the present case, Respondent showed a legitimate reason for discharging Petitioner. Petitioner failed to establish a prima facie case of discrimination based upon her race, religion, disability or marital status. Petitioner also failed to demonstrate that Respondent discriminated against her in retaliation for Petitioner engaging in an activity that was protected by Section 760.10(7), Florida Statutes. Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 4A day of Vabir ; 2003, in Tallahassee, Leon County, kative Law Judge sd Way, Bin A-0 32398-1703 Filed with the clerk of the Florida Commission of Human Relations this 2" day of December 2003. 30 COPIES FURNISHED: Ms. Audrey Randolph 2644 Edgewood Avenue, West Jacksonville, FL 32209 Mr. Linzie F. Bogan, Esq. Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 Harry Hooper Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Secretary of Commission Mike Hanson Room 1801, The Capitol Tallahassee, Florida 32399-0001
The Issue Whether Respondent unlawfully terminated the employment of Petitioner on July 31, 2000, because of his race and/or age in violation of the Florida Civil Rights Act of 1992, Subsection 760.10(1), Florida Statutes (2001).
Findings Of Fact Respondent, Argenbright Security, Inc., now known as Cognisa Security, Inc., is an Atlanta, Georgia-based corporation that provides commercial security services to customers on a nationwide basis. Respondent employs security officers who are placed on assignments at customers' premises. Relevant to this action, Respondent maintains an office in Orlando, Florida, to support its commercial security services in Central Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was employed with Respondent from May 1998 to July 31, 2000. Petitioner is an African-American male who was 50 years of age upon hiring and 52 years of age upon his discharge from Respondent's employ. During his employment with Respondent, Petitioner was provided with Respondent's employment policies, including the equal employment opportunity policy which prohibits all types of unlawful discrimination in the workplace. Throughout his employment with Respondent, Petitioner worked as a district manager and was supervised by Buckwalter, who was Respondent's vice president and general manager of the Southeast region. Buckwalter made the decision to hire Petitioner and made the decision to discharge him. Based on a decline in business and a lack of work, Buckwalter himself was discharged by Respondent in January 2002. Petitioner's job duties as a district manager included supervising Respondent's account managers who managed security officer accounts and ensured overall customer satisfaction. Petitioner was responsible for supervising the management of approximately 60 customer accounts in Orlando, Jacksonville, Tampa, and St. Petersburg. Petitioner supervised a staff of approximately 33 employees, excluding Respondent's security officers. The list of Respondent's customers in Petitioner's region included, but was not limited to, the following entities: the City of Orlando, U.S. Airways, Delta Airlines, Northwest Airlines, Orange County, C&L Bank, Citrus Center (also known as Tricony Management), Florida Power Corporation, Solivita (also known as Avitar), and Ocwen. Respondent alleges that Petitioner's performance deteriorated during the last six months of his employment, and as a result, Petitioner was discharged on July 31, 2000. Buckwalter testified that he made the decision to terminate Petitioner's employment based on his receipt of numerous customer complaints regarding Petitioner's management of accounts and failure to resolve problems, numerous complaints from Petitioner's subordinates regarding Petitioner's management style and lack of guidance, and Petitioner's failure to properly perform his administrative duties. Buckwalter received eight to ten complaints from Respondent's customers about Petitioner's management of their accounts. Several of Respondent's customers repeatedly complained about Petitioner's management skills. Buckwalter received complaints from Respondent's customers regarding Petitioner's lack of attentiveness towards their accounts, failure to conduct client meetings, and inability and unwillingness to resolve client problems. When Buckwalter discussed the customer complaints with Petitioner, Petitioner sometimes acknowledged the seriousness of the concerns and sometimes became defensive and dismissed the complaints as unreasonable client demands. Two of Respondent's customers, Tricony Management and C&L Bank, specifically demanded that Petitioner be removed from the management of their accounts based on his lack of service and "cavalier" attitude toward their requests. Linda Mansfield, who was the client contact at Tricony Management, sent an e-mail complaint to Respondent's business development manager, Warren Bovich, in regard to Petitioner and Robert Stevenson on February 8, 2000. Tricony Management did not cancel its account with Respondent. However, they insisted that Robert Stevenson and Petitioner be removed from the account. Petitioner admitted that the following customers complained regarding his servicing of or management of their accounts: Ocwen, Citrus Center/Tricony Management, City of Orlando, Avitar/Solivita, C&L Bank, and Florida Power Corporation. Petitioner disagreed with the substance of those complaints. Petitioner also admitted that he had a personality conflict with a Citrus Center employee. Regarding the City of Orlando account under Petitioner's supervision, Petitioner admitted that employee turnover was a problem, that the account was not meeting the budgeted goals, and that Respondent's employees routinely missed their scheduled work shifts. Petitioner further admitted that Avitar/Solivita was upset with him about his unauthorized recruiting efforts. In addition to the customer complaints, Buckwalter received approximately 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management style. Petitioner's subordinates complained that Petitioner was not concerned with their career development, failed to provide them with timely performance evaluations, failed to conduct staff meetings on a routine basis, failed to attend staff meetings which he had scheduled, did not provide proper support and mentoring for customer accounts, and was generally unavailable to them based on his lack of time in the office. Petitioner admitted that a subordinate complained to Buckwalter regarding Petitioner's failure to provide him with a performance evaluation in a timely manner. Petitioner also acknowledged that Buckwalter received a complaint from Respondent's employee regarding his failure to properly process administrative paperwork. Petitioner admitted that he does not know whether Buckwalter received additional complaints from his subordinates regarding his management. Accordingly, Buckwalter's testimony that he received 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management is credible. Buckwalter's decision to discharge Petitioner was also based, in part, on Petitioner's failure to properly process administrative paperwork. Buckwalter informed Petitioner, in writing, that his neglect of his administrative duties was unacceptable. Buckwalter also determined that on several occasions, Petitioner provided misleading information about his whereabouts by falsely reporting that he was out of the office conducting client appointments. In addition to Petitioner, Buckwalter supervised several other of Respondent's district managers, including Blake Beach (Beach) and Scott Poe (Poe)--both of whom were formerly employed as district managers in South Florida. While serving as Beach's supervisor, Buckwalter received a single complaint from Respondent's customer, United Airlines (United), regarding Beach's sending of an inappropriate e-mail. United's compliant did not concern Beach's servicing or management of United's account. Other than United's single compliant, none of Respondent's other customers submitted complaints regarding Beach. Based on United's complaint regarding Beach's inappropriate e-mail, Respondent transferred Beach from South Florida to the Baltimore/Washington, D.C., area. While serving as Poe's supervisor, Buckwalter received complaints from two of Respondent's customers (in the South Florida region) regarding Poe's management of their accounts. Because Poe had been successful with other accounts, Buckwalter believed that the two complaints might have been based on a personality conflict. Buckwalter decided to transfer Poe from the district manager position in South Florida to the district manager position in Central Florida. Buckwalter never received complaints from Poe's subordinates regarding Poe's management or supervision. After Poe became the district manager in Central Florida, Respondent received additional complaints from several customers regarding Poe's handling of their accounts. Based on these complaints, Buckwalter made the decision to terminate Poe's employment with Respondent. Buckwalter made the decision to discharge Poe and Petitioner based on a similar number of complaints received from customers in their respective regions; but unlike Poe, Petitioner was discharged for additional reasons: the numerous complaints from his subordinates and the neglect of his administrative duties. Robert Matecki, who was 55 years old when he was hired, replaced Petitioner as Respondent's district manager in Orlando. Petitioner does not allege that Respondent discriminated against him at any time prior to Petitioner's termination on July 31, 2000. Petitioner does not contend that Buckwalter (the decision-maker in this case) ever made any discriminatory comments to him. Petitioner admits that he does not know what factors Respondent considered in making the decision to terminate his employment. Buckwalter testified that he did not consider Petitioner's age and race in making the decision to discharge Petitioner. Instead, he based the decision on customer and subordinate complaints about Petitioner's management style and Petitioner's failure to perform his administrative duties. Because Petitioner admits that he does not know upon what factors Buckwalter based his decision, Buckwalter's testimony is undisputed. Petitioner bases his allegations on his own personal beliefs about his performance and his disagreement with the substance of the complaints made by Respondent's customers and his subordinates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Florida Commission on Human Relations enter a final order which denies Petitioner's Petition for Relief and dismisses his complaint with prejudice. DONE AND ENTERED this 25th day of June, 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 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne Johnson, Esquire DeCiccio, Johnson, Herzfeld & Rubin 652 West Morse Boulevard Winter Park, Florida 32789 John S. Snelling, Esquire James P. Ferguson, Jr., Esquire Duane Morris, LLP 1180 West Peachtree Street, Suite 700 Atlanta, Georgia 30309 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Florida Commission on Human Relations (FCHR) correctly determined that it lacks subject matter jurisdiction over Petitioner’s claim of unlawful employment discrimination because the complaint was received more than 365 days after the date of the alleged violation?
Findings Of Fact AAR Corp. (AAR) is an aviation support company which provides maintenance, repair, and overhaul services to air carriers at various facilities through the United States. AAR uses its own employees in addition to utilizing employees from its temporary staffing company, AMS. When AAR’s business increases, it increases its workforce by adding workers from AMS. When AAR experiences a downturn in business, it similarly reduces its workforce, typically, by reducing workers from AMS through layoffs. Business is usually slow for AAR and AMS during the peak airline travel times, including summer and the winter holidays. Business of AAR and AMS is also affected by AAR's contracts with major airline carriers for scheduled and non-scheduled maintenance to aircraft. Magri was hired by AMS on October 27, 2011, as a Sheet Metal mechanic at the AAR Miami International Airport facility. She began work January 16, 2012, and at all times material hereto, worked as an Interior Mechanic for AMS. Magri's last day physically working for AMS was October 10, 2013. In 2013, Pedro Estrada (Estrada) became Magri's immediate supervisor. According to Magri, Estrada frequently subjected Magri to sexual jokes, graphic comments about her body, and requests for sexual favors.2/ At the end of September or beginning of October 2013, Estrada came up behind Magri and placed his penis against her buttocks in a sexual manner. Shortly after making a sexual harassment complaint about her supervisor in September 2013, Magri was given a disciplinary memo for poor performance on October 4, 2013. Although there is no prior record of written discipline against Magri, this memo notified her that this was a "final warning" and any future violations could result in termination. On October 10, 2013, Magri was sent home by her then immediate supervisor, Plamen Ilonov (Ilonov), Manager of Interior, allegedly due to a lack of work. Approximately eight other AMS workers were laid off for the same reason on that date. AMS employees were aware of a likely work slowdown at that time because US Airways cancelled its contract with AAR in the fall of 2013 due to US Airways impending merger with American Airlines. However, neither Magri, nor her co-workers, were told by Human Resources or their supervisors, the anticipated duration of the layoff. In fact, it was common practice for AMS employees to be laid off and then returned to work within a week to a month due to the workflow fluctuations. This happened to Magri for a month in 2012. Laid off employees, including Magri, were directed to regularly call or text their supervisor to see when work was available. AMS had no system of notifying employees whether a layoff would be long or short term. When a layoff was anticipated to be long term, the AMS worker was removed from the Human Resources payroll system and internal paperwork was generated indicating termination, however, the employee was not notified of their status other than "lay off." At the time of an anticipated long-term layoff, the AMS Human Resources Department also deactivated the worker's security badge that would provide access to the facility. However, the employee was not asked to return the badge, nor was the employee advised that the badge was inactive. When she was sent home on October 10, Magri was instructed by Ilonov to check with him regarding when she might be returned to the work schedule. At this time she was not aware a decision was made that she would likely be laid off more than a month. For the next two weeks, Magri called and sent text messages to Ilonov looking for clarification as to when she might be returned to work. Magri sent a text message to Ilonov on October 11 asking "Why me." Ilonov responded that 10 people were affected, not just Magri. Magri asked, "Plamen do you think its [sic] layoff will take long time?" On October 12, after receiving no response, Magri texted Ilonov, "Good morning, Plamen, do you think I have to take out my tool box?" Ilonov replied, "Good morning, it is possible. I don't see much next 2-3 months." In a telephone conversation this same week, Ilonov indicated to Magri that work might be available October 21 if United Airlines planes arrived for service. Based on this, Magri had a legitimate expectation that she would be returned to the schedule. On October 20, Magri sent a text to Ilonov stating, "Do you don't [sic] know how long? I'm very scared without work." Ilonov did not reply. During this week, several employees were called to return to work. Ilonov did not return Magri to work because he only called back those he considered his "best" workers. On October 24, Magri sent several text messages to Ilonov seeking an explanation of when she might return to work or why she wasn't called back. Ilonov responded that he was calling whoever he thought he needed, and "We are really slowing down, and soon more changes." On October 25, Magri went to the facility to speak directly with Ilonov. During this meeting he made it clear to Magri for the first time that it was not his decision whether to put her back on the schedule, and that he did not think the "higher ups" wanted her to return. He told her he could not tell her anything further and that she would need to contact the Maintenance Manager, Luiz Gonzalez (Gonzalez). This was the first time Magri realized that this would not be a short-term layoff. At some point shortly thereafter, Magri spoke to Gonzalez by telephone, who told her she needed to look for alternative employment. Respondent maintains two conflicting factual assertions. Respondent contends the decision to terminate Magri's employment was made on October 10, 2013, as evidenced by its internal removal of Magri from the payroll system and the deactivation of her employee security badge (neither of which Magri was aware). Alternatively, Respondent claims there was no decision to terminate Magri and that she remains eligible for rehire. Regardless of whether Magri's separation from employment was a termination or long-term layoff, the earliest Magri knew or should have known that she suffered adverse action was October 24, 2013, when she became aware that although some of her co-workers were being immediately called back to work, she was not. Accordingly, Magri's charge, filed on October 16, 2014, which is 357 days from the alleged violation, was timely with regard to her claim of sex discrimination and retaliation arising from her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations decline jurisdiction of Petitioner's charge of sexual harassment, which allegedly occurred prior to October 10, 2013, and take jurisdiction of Petitioner's charge of sex discrimination and retaliation arising from her separation from employment on October 24, 2013. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 29th day of February, 2016.
The Issue Whether Petitioner, a member of a protected class, was terminated from the position of a District Manager with the Respondent on or about December 21, 1992, on the basis of his national origin (Hispanic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact Respondent, The Silent Witness, Inc., is a corporation engaged in providing worker's compensation investigative services for insurance companies. It currently employs approximately forty (40) employees. In December, 1992, it employed approximately 71 employees. Respondent is an employer under the Florida Civil Rights Act of 1992. Respondent has been in business since 1988. Bob Gott, President of Respondent, and Phil Sanford, Vice President, were owners of the Company at all times relevant to this case. At the relevant time, a company Directorate had been established for managing the day to day operations of the company. The Directorate was made up of five (5) employees, Jim Yockey, Director of Operations (Atlanta), Tom Overton, Director of Operations, Jo Branton, Director of Sales, Sheila Harold, Director of Administration, and Keith Freeman, Director of Human Resources. The Respondent has adopted and had in effect at all times pertinent, a written policy of equal employment opportunity. Respondent has employed and promoted Hispanic and African-American employees in the past. Petitioner, Juan Falcon, is an American male of Hispanic (Puerto Rican) descent. Petitioner was employed by Respondent from August 10, 1992 until December 21, 1992 as a Division Manager. Petitioner was hired a rate of pay of $500 per week and received a $100 per week raise in September, 1992. During the course of his employment, Petitioner was not reprimanded for poor performance. Petitioner was interviewed and hired into a management position (Division Manager) upon the recommendation of Keith Freeman who had known and supervised him at a previous employer, Florida Claims Bureau. During the relevant time period, there were three division managers in the Respondent's investigative division, Petitioner, Danny Laughlin and Tom Overton. Petitioner and Danny Laughlin, an African-American, reported to Tom Overton, a white male, Director of Operations, who also acted as a Division Manager. In the fall of 1992, the owners, Bob Gott and Phil Sanford, and the Directorate became concerned with problems in the Operations Department. These problems related to communications with other departments, loss of customers, and lack of follow up by the Operations Department after additional training. In December, 1992, Bob Gott came to Keith Freeman and stated to Freeman that he had found an audio tape on his desk. Gott stated that he did not know where the tape came from or who had placed it there but he had listened to it. Gott stated to Freeman that the substance of the tape was indicative of attitude problems the Petitioner and others were having and important enough to discuss at the next Directorate meeting. The tape apparently consisted of conversations between Laughlin and the Petitioner and investigators working under each of them. The conversations included debriefings of the investigators. Gott believed the tape demonstrated poor attitudes on the part of the Division Managers and investigators involved. Gott came to the Directorate meeting on December 8, 1992. He advised the Directorate that he had a tape, that he did not know where the tape came from, that he was disturbed by the contents of the tape, and that he wanted the Directorate to review the tape and take appropriate action. Gott then left the meeting. The Directorate listened to the tape and appointed Tom Overton to conduct an investigation into the problems reflected on the tape. Overton was to report back to the Directorate at the next meeting with an analysis of what he felt was wrong with the Operations Department and how to improve its operations and fix the problems. The Directorate specifically ordered Overton not to discuss the investigation with anyone other than the members of the Directorate or the owners. Overton contacted all of the employees who were on the tape, except one, and played the tape at a meeting in his home. Petitioner and Danny Laughlin, who were Division Managers, as well as Mark Jarrett and John Bagley who were investigators were present. Jarrett worked under the Petitioner and Bagley worked under Laughlin. Theresa Miller, who worked under Laughlin, was also on the tape but was not present because she was out of town. Overton told those present not to say anything about the tape and not to admit that they knew the tape existed. Gott found out that Overton had played the tape for those on it and had divulged the existence of the investigation to other people in the company. When confronted by Gott, Overton initially denied he had let his employees listen to the tape, but eventually admitted it sometime before December 21, 1992, the date when Petitioner was terminated. On or about December 17, 1992, Gott spoke briefly with the Petitioner concerning the Petitioner's knowledge about the tape and the meeting at which Overton played it. The Petitioner denied any knowledge of any tape recordings because he believed he might lose his job. Gott came to Freeman and asked him to meet with Gott and the Petitioner. Gott was concerned that the Petitioner had denied any knowledge of the tape because everyone else involved had said the Petitioner was at the meeting where Overton played the tapes. Gott was aware of Freeman's relationship with the Petitioner and wanted Freeman to meet with Gott and the Petitioner to try to alleviate the Petitioner's concerns and try to get him to honestly answer the questions. Later the same day, Freeman and Gott met with the Petitioner in Freeman's office. Freeman told the Petitioner that he had known the Petitioner for years, that he had helped bring the Petitioner into the company and that the Petitioner did not need to be concerned about his position as long as he told the truth. Freeman also told the Petitioner that if a manager had told the Petitioner to do something the Petitioner was uncomfortable with, the only person he had to be honest with was the owner of the company. The Petitioner was specifically asked if he heard the tape, if he had any knowledge of the tape, and if he was in a meeting with Overton. The Petitioner stated that he was not aware of any tape recordings made between investigators and their managers and he did not attend a meeting called by Overton. At the next meeting of the Directorate, the Directors discussed the fact that Overton had divulged the investigation and contents of the tape to outside parties and discussed it with other people besides the Directorate. Overton was not at the meeting because he had admitted this to Gott. The Directorate voted to terminate Overton for direct violation of the Directorate's orders; however, because of Overton's longevity with the Respondent it voted to offer Overton a demotion. The Directorate voted to terminate Laughlin for lack of performance. The Directorate voted to terminate the Petitioner for dishonesty. On December 21, 1992, Overton was called into the Directorate meeting and was terminated and then offered a demotion. The Petitioner was called in next and was terminated for being dishonest to an executive officer and for lack of performance. Laughlin was called in and informed of his termination. The day after Petitioner's discharge, Ed Coglin, a white investigator was promoted to the position of Division Manager at a rate of pay of $650 per week. Coglin had not passed his division manager's test at the time of his promotion. At the end of the week, Phillip Sanford, Vice President of the Respondent, called Laughlin and offered him a job in a demoted position as a senior investigator. Laughlin indicated he had had a number of other offers with other companies and declined the offer. Sanford did not contact the Petitioner to offer him a position because of his dishonesty in response to Freeman and Gott's questions about the tape. The week after their termination on December 21, 1992, Laughlin and the Petitioner filed a complaint with the Altamonte Springs Police Department concerning the tape of their conversations with their investigators. The complaint was forwarded to the State Attorney's office, which took no action. Between January, 1992 and June 1993, at least eight other employees besides the Petitioner have been terminated for poor work performance. Of those eight, two were Hispanic, five were white and one was black. Two other employees, one white and one Hispanic, were terminated for dishonesty in 1990. The Petitioner was specifically informed that he could be terminated without notice for dishonesty when he was first employed. In fact on August 10, 1992, the Petitioner signed and acknowledged the list of termination offenses. The Respondent's employee policy handbook also states that dishonesty in dealing with clients or management are grounds for immediate termination. At the time of the Petitioner's termination, two employees were promoted to Division Manager, i.e., Reginald McCutchen, black, and Ed Coughlin, white. One Division Manager position was eliminated. McCutchen was in the Atlanta office at the time. Coughlin and Overton performed the duties of Division Manager in Orlando. Respondent has employed twenty division managers since 1989. Of those twenty, seven were non-Caucasians. The longevity of the division managers is delineated below: Caucasian division managers: 5 years 2 4 years 1 3 years + 5 2 years + 2 1 year + 2 6 months 1 TOTAL 13 Non-Caucasian division managers: 2 months 1 4 months 1 1 year + 2 (Laughlin + McCutcheon who worked in Atlanta) 2 years + 2 As of October, 1994, no Hispanic investigators were working for Respondent. Petitioner claimed that Bob Gott, the Company President, was a racist and treated him discriminatorily by behaving coldly to him and never greeting him and because he was a "very cold distant type individual". Gott lacked interpersonal skills, could be moody, had an abrasive personality, and often spoke abruptly to other employees both Hispanic and non-Hispanic. The evidence failed to show that Gott had a "racist" attitude toward Hispanics. The Petitioner claims he was treated differently than similarly situated non-Hispanic employees when he was terminated. The Petitioner failed to present sufficient evidence to show that he was terminated on the basis of his national origin (Puerto Rican). As of Tuesday, December 22, 1992, the date of Petitioner's discharge, he was earning $600 per week. As of the date of the Division of Administrative Hearing's hearing Petitioner had accrued 94 weeks of back pay at the rate of $600. per week. Following his discharge, Petitioner earned $14,897 in 1993 and he had earned $10,598 as of the date of the Division of Administrative Hearing's hearing on October 11, 1994. Thus, the information shows the following: INCOME AT SILENT WITNESS 94 x 600 = 55,200.00 INCOME ACTUALLY EARNED SINCE DISCHARGE: 1993 14,897 1994 10,598 25,495.00 TOTAL LOST INCOME 29,705.00
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 which DENIES the Petition for Relief. DONE AND ENTERED this 17th day of March, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of March, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: p.1, paragraph A.1 (in part); p.2, paragraphs 1, 2, 3; p. 3, B2; p.4, paragraph C.1 (in part); p.5, paragraph C.2.2; p.5, paragraph C.2.3. (in part); p.6, C.2.4.; p.6, C.2.5 (in part); p.7, D.1, D.2. Rejected as contained in the Preliminary Statement: p.1, paragraph A.1 (in part); p.5, paragraph C.2.1, or subsumed. Rejected as a argument on comment on the evidence and irrelevant and immaterial: p.3, paragraph B.1.; p.4, paragraph B.4, C.1 (in part); p.6, C.2.6. Rejected as against the greater weight of evidence or hearsay: p.4, C.1 (in part); p.5, paragraph C.2.3. (in part); p.6., C.2.5 (in part). Respondent's proposed findings of fact: Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5, 6, 7, 8, 9, 10 (in part), 11, 12, 13 (p.4), 13 (p.5), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23. Paragraphs rejected as argument or a comment on the evidence and irrelevant and immaterial: Paragraphs 4 (in part), 10 (in part). COPIES FURNISHED: Carol Swanson, Esquire 801 N. Magnolia Avenue Ste 302 Orlando, Florida 32803 Dorothy F. Green, Esquire Richeson & Brown, P.A. Post Office Box 3006 Orlando, Florida 32802 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner was unlawfully terminated from her position with Respondent because of her race (Caucasian), in violation of the Florida Civil Rights Act of 1992 (hereinafter "FCRA"), Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, the following relevant facts are determined: Respondent is a corporation, licensed to do business in Florida, that provides cleaning services to business clients; and is an employer, as that term is defined, under the FCRA. Petitioner began her employment with Respondent on January 1, 1997. Petitioner was hired as a restroom cleaner, and remained in that position until her termination from employment with Respondent on August 6, 1998. Throughout her employment with Respondent, Petitioner's supervisors were: Cecilia Haimes ("Haimes"), a Caucasian female; Danna Hewett ("Hewett"), a Caucasian Female; and Carlos Ramirez ("Ramirez"), an Hispanic male. Additionally, throughout her employment with Respondent, Petitioner was assigned to work at the Orange County Convention Center ("OCCC"). Hewett began her employment with Respondent as a restroom cleaner. Shortly thereafter, she was promoted by Ramirez to the position of lead restroom cleaner. Shortly after that, she was once again promoted by Ramirez, to the position of supervisor. As a supervisor, Hewett supervised Petitioner. Hewett became Petitioner's supervisor in or around August 1997. In her capacity as supervisor, Hewett was informed by other employees at OCCC that Petitioner was spreading rumors and gossiping about alleged affairs between certain employees and/or supervisors. Hewett and Ramirez discussed Petitioner's behavior, and they concluded that such behavior was extremely disruptive to the work environment. Specifically, such behavior by Petitioner affected employee morale and employees' respect for their supervisors. Based on these allegations, Ramirez contacted Ronald Jirik ("Jirik"), the Central Florida Regional Manager, to inform him of Petitioner's behavior. Upon meeting with Hewett and Ramirez, Jirik informed Ramirez to meet with Petitioner to try to get her to stop spreading such rumors. Ramirez met with Petitioner shortly thereafter. He attempted to resolve the problem and instructed her not to gossip or spread rumors. However, the problem persisted. Jirik contacted Ramirez to follow up on whether or not Ramirez was able to resolve the problem. Ramirez informed Jirik that he was unable to stop the rumors, and that he believed that Petitioner was continuing this improper behavior. Jirik then informed Ramirez that it would probably be best if Petitioner was transferred from the OCCC, and be given the option to transfer to another facility that was of equal distance from her home. Jirik is Caucasian. Jirik suggested that Petitioner be transferred to the Orlando Sentinel building due to the fact that, based on the information in Petitioner's personnel file, this location would have been of equal distance from her home. Additionally, such a transfer would not have changed any of the terms and conditions of Petitioner's employment, including but not limited to, pay, benefits, responsibilities, or shifts. Based on the foregoing, Ramirez met with Petitioner and she was offered a transfer to the Orlando Sentinel building location. However, Petitioner refused to accept the transfer. Thereafter, Petitioner's employment with Respondent was terminated on August 6, 1998. The evidence proved that Ramirez reprimanded Spanish- speaking and Caucasian employees in the same manner. Additionally, there was no credible evidence to show that Ramirez gave any form of favoritism to Spanish-speaking employees. Respondent's reason for terminating Petitioner was based on Respondent's perception that her conduct was disruptive to the work force. The allegation that Petitioner was terminated based on a discriminatory animus is unsubstantiated by the testimony and other evidence. There is no evidence that Respondent terminated Petitioner based on her race (Caucasian).
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 which DENIES the Petition for Relief. DONE AND ENTERED this 7th day of March, 2002, in Tallahassee, Leon County, Florida. 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 7th day of March, 2002. COPIES FURNISHED: Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Mary J. Hall 1821 Ernest Street Maitland, Florida 32794 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues presented are whether Respondent properly terminated Petitioner from his employment as a deputy sheriff for alleged insubordination in violation of Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida (the Civil Service Act) and Respondent's General Order Section 3-1.1, Rule and Regulation 5.17(a), and, if not, whether Respondent should reinstate Petitioner to his former position with back pay, benefits, and seniority.
Findings Of Fact Respondent is a constitutional officer of the State of Florida. Respondent is responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times pertinent to this case, Respondent employed Petitioner as a deputy sheriff, and Petitioner was subject to relevant rules and regulations identified in the record as General Orders and Rules. Sometime in July 2004, Ms. Caroline Hart, a private citizen, communicated to Petitioner that she had previously been the subject of inappropriate sexual misconduct from Deputy Sheriff Gerald Akins when Deputy Akins responded to a call from Ms. Hart within the city of Dunedin, Florida. Ms. Hart knew Petitioner from a previous relationship. Petitioner was uncertain of the procedure he should follow, and sought advice from Corporal James Cooper, Petitioner's immediate supervisor. Corporal Cooper was the acting sergeant for their squad. No sergeant was scheduled to be on duty that night when the squad was to begin its shift. Petitioner telephoned Corporal Cooper and reported the accusations by Ms. Hart. Corporal Cooper assured Petitioner that Petitioner had followed the correct procedure and that Corporal Cooper would report the information to Sergeant Michael Rogers, the shift commander for the shift that included their squad and that of Sergeant Rogers. During the conversation between Corporal Cooper and Petitioner, Corporal Cooper stated that Petitioner should not discuss the matter with Deputy Akins. Petitioner subsequently telephoned Deputy Akins and told him about the accusations by Ms. Hart. Respondent alleges that when Petitioner communicated with Deputy Akins Petitioner committed insubordination by "refusing to obey a lawful order" from Corporal Cooper within the meaning of General Order Section 3-1.1, Subsection 5.17(a)(the rule). Petitioner asserts that the statement by Corporal Cooper was advice, rather than an order, and that Petitioner did not commit insubordination. The factual issue presented is whether Corporal Cooper ordered Petitioner not to speak to Deputy Akins. A finding of insubordination requires a preponderance of evidence to show that Corporal Cooper intended to issue an order, that the express words used by Corporal Cooper clearly stated an order, that Petitioner understood the statement to be an order, and that Petitioner intentionally refused to follow an order. Relevant rules do not define terms such as an "order" or "refusing an order" and do not distinguish an "order" or an "instruction" from "advice." The trier of fact defines relevant terms based on the plain and ordinary meaning of relevant terms as they are defined in The American Heritage Dictionary of the English Language, 4th ed., at 25, 1238, and 1469 (Boston 2000), and as explained in relevant testimony during the hearing. As the Chief Deputy explained during his testimony: The terminology that we use is a lawful order. I'm not certain that there is a specific definition within the policies. My understanding of the . . . the term order . . . in the context of our rules and regulations is basically the definition that I guess you would refer to in a dictionary in terms of when an order is given. Transcript (TR) at 220. Corporal Cooper clearly intended to order Petitioner to refrain from talking to Deputy Akins. Corporal Cooper assumed in his own mind there was a possibility for either a criminal or internal investigation, or both. Consistent with standard operating procedures in either type of investigation, Corporal Cooper intended to preserve the opportunity for investigators to "blind side" Deputy Akins by not giving him a head's up before questioning him. A preponderance of evidence does not support a finding that Corporal Cooper ever articulated the disputed order. The words used by Corporal Cooper to articulate the alleged order are not in evidence. Corporal Cooper does not recall what he said to Petitioner. The words used to communicate an order are essential to the existence of an order and to an understanding in the mind of a recipient, such as Petitioner, that he is receiving an order. As the Chief Deputy explained during his testimony: Obviously you need to be clear as to what words were used at the time when Corporal Cooper spoke with Deputy Collinsworth as it related to any communication with Deputy Akins. TR at 221-222. Corporal Cooper does not recall the exact words he used to communicate with Petitioner. Petitioner understood Corporal Cooper to advise Petitioner not to contact Deputy Akins. Corporal Cooper and Petitioner were the only parties to their conversation. The exact words used by Corporal Cooper, if they were in evidence, must also be interpreted in the context of the conversation with Petitioner. In response to a question from the trier of fact concerning the distinction between an order and advice, the Chief Deputy explained: And I think that the best way to describe that is in the context of . . . the words used. . . . [T]here would be some question as to the specific verbiage that was used and putting that into context as you made your decision. TR at 221-222. The conversation between Corporal Cooper and Petitioner arose in the context of Petitioner soliciting advice from Corporal Cooper. Corporal Cooper gave Petitioner advice in the same conversation in which he intended to "instruct" Petitioner to refrain from talking with Deputy Akins. However, Corporal Cooper did not verbally distinguish the advice from the instruction or clearly segue from advice to an order. Conflict testimony from Corporal Cooper during direct and cross examination elucidates the ambiguous context of the conversation with Petitioner. During direct examination by counsel for Respondent, Corporal Cooper testified that he gave Petitioner an instruction in response to Petitioner's request for advice: Deputy Collinsworth had called. He was upset. He stated he needed some advice. Q. Did you give Mr. Collinsworth some advice regarding his dealings with Ms. Hart? A. Yes. I told him not to talk with her any further, ignore her phone calls and not to have any personal contact with her. Q. And what did you tell Mr. Collinsworth about the allegations that Ms. Hart had made pertaining to Deputy Akins? A. Well . . . I told him that he started at the right spot and that I was going to have to get with Sergeant Rogers, because he was our shift commander at the time, and present the information to him and see where it goes from there. Q. And did you give . . . Deputy Collinsworth any other instructions about how he should deal with this information? A. I did tell him not to contact Akins, so I wanted to get a word for word from Akins. I didn't want him to have a head's up. (emphasis supplied) TR at 53-55. On cross-examination, Corporal Cooper did not recall the exact words he used to communicate with Petitioner and cast the conversation with Petitioner in a different light. In relevant part, Corporal Cooper testified: Q. And Shane was off duty to the best of your knowledge? A. Yes. Q. 'Cause he worked with you on the same shift, is that correct? A. Yes. Q. And you gave advice to Deputy Collinsworth about this whole situation, didn't you? A. Yes. Q. And some of your advice was to terminate all the phone calls with Ms. Hart and all the communication and all that, is that correct? A. Yes. Q. And that wasn't an order, was it? A. No. Q. Now when you were testifying on direct you mentioned that you went into the conversation about what to do with Akins, is that correct? A. Yes. Q. Did you preface anything in between the conversation about Hart and now talking about Akins, did you preface it with anything such as, well, now this is an order? Did you make any suggestion that you were changing from advice to an order? A. Not in that manner, no. Q. And as a matter of fact you don't remember what you said verbatim, is that correct? A. That's correct. Q. As a matter of fact you could have said I don't think you should call him. Could you have said that? A. Yes. Q. And that wouldn't be an order, would it? A. No. Q. And you could have also said I don't think it's a good idea to call him. Could you have said that? A. Yes. Q. And if you did indeed say that, that wouldn't be an order, would it? A. No. Q. And you could have also said, no, I wouldn't. Why get him upset? You could have said that, couldn't you? A. Yes. Q. And had you said that, that wouldn't be an order, would it? A. No. Q. Deputy Collinsworth has never disobeyed your orders in the past, is that correct? A. Correct. (emphasis supplied) TR at 69-71. Petitioner's understanding that Corporal Cooper advised, rather than ordered, Petitioner not to talk to Deputy Akins was corroborated by Deputy Akins. At a time more proximate to the incident, Petitioner asked Deputy Akins not to tell anyone about their conversation because Corporal Cooper had "advised" Petitioner not to discuss the matter with Deputy Akins. In relevant part, Deputy Akins testified: Q. Did Deputy Collinsworth tell you whether you should expect a call from Corporal Cooper? A. No, he did not. Q. Do you recall how this conversation concluded with Deputy Collinsworth? A. He stated that if anyone asked if we had spoken, to say no, we had not. Q. And did you ask him why he was asking you to do that? A. Yes. Q. And what did he say in response to that? A. Because he was advised by Corporal Cooper not to talk to me. . . . I don't remember verbatim word by word how the conversation went, but . . . I'm absolutely positive of the context of the conversation and how it was said. (emphasis supplied) TR at 112 and 116-117. It is undisputed that advice is not an order. Advice is a recommendation or suggestion. An order is a command or instruction given by a superior to a subordinate to act or to refrain from an act. The words used by Corporal Cooper and the context of the conversation with Petitioner did not create an understanding in the mind of Petitioner that he had received an order not to contact Deputy Akins. Petitioner lacked the requisite intent to refuse to follow an order. Respondent urges that Petitioner should have understood he was receiving an order from Corporal Cooper. As the Chief Deputy explained during his testimony: But I would also tell you that Corporal Cooper and Deputy Collinsworth were both aware of the fact that an allegation is made, that there is potential for an administrative investigation, and in the context of their discussion if Corporal Cooper was clear that there was the possibility of an administrative investigation, then at that point by general order there is no discussion with the principal. (emphasis supplied) TR at 222. Corporal Cooper was not clear that there was the possibility of an administrative investigation. Corporal Cooper advised Petitioner that he had started at the right place and that Corporal Cooper would report to the shift commander and see where it goes from there. Even if Corporal Cooper clearly stated that an administrative investigation were possible, Respondent did not terminate Petitioner from his employment on the alleged ground that Petitioner violated Respondent's written policy. The synopsis of the charge against Petitioner states: You were ordered by Corporal Cooper not to call or speak to Deputy Akins regarding an allegation concerning him. You disregarded this order and then you told Deputy Akins not to tell Corporal Cooper that you called him concerning the allegation. (emphasis supplied) Inter-Office Memorandum dated May 13, 2005. The expression, "see where it goes from there" is not synonymous with an administrative investigation. The matter could have been resolved through informal investigation by a front line supervisor. As Sergeant Rogers explained during cross-examination by counsel for Respondent: Q. If Akins was making improper comments to a member of the public, particularly someone that was a victim of a crime that he was involved in investigating, that would be improper? A. Yes, sir. Q. That would be subject to an investigation? A. Depends on what type of investigation you mean. Whether it would be a formal investigation or one done by a front line supervisor. That was my intent, I was going to have a front line supervisor look into it. TR at 247. Sergeant Rogers did not request an administrative investigation. When Corporal Cooper reported the allegations against Deputy Akins to Sergeant Rogers, the shift commander told Corporal Cooper to refer the matter to a sergeant identified in the record as either Sergeant Hubbard or Marshall (Sergeant Marshall). Sergeant Marshall was the shift commander for the squad or squads assigned to the city of Dunedin, Florida, the situs of the alleged violation. Sergeant Rogers ordered Corporal Cooper to refer the matter to Sergeant Marshall for investigation the next day. Sergeant Rogers received the report from Corporal Cooper at about 4:00 a.m. Ms. Hart was "extremely drunk," according to the information available to Sergeant Rogers, when Ms. Hart made the allegations against Deputy Akins. As Sergeant Rogers explained during cross-examination by counsel for Respondent: [T]he woman was extremely drunk. Why would I call her back at four or five in the morning when she's probably passed out? Let her sober up and let another supervisor talk to her later. TR at 248. Respondent did not undertake an administrative investigation of the allegations by Ms. Hart against Deputy Akins until months later when Respondent discovered those allegations during the administrative investigation of Petitioner that led to this proceeding. The investigation of the allegations by Ms. Hart exonerated Deputy Akins. Even if the words used by Corporal Cooper to communicate his intended order to Petitioner were in evidence, the disclosure by Petitioner to Deputy Akins of the allegations by Ms. Hart did not defeat the purpose of the alleged order from Corporal Cooper. As the Chief Deputy explained during his testimony: Q. Did the basis for exonerating Deputy Akins, if you know, have any relationship with the potential harm created by the disclosure of the allegations by petitioner to Deputy Akins? A. [I]n fact I don't believe it would have changed the final outcome. It [exoneration] probably still would have been followed . . . . The primary concern was the [lack of] veracity of the [alleged] victim. TR at 226-227. The refusal of Petitioner to follow the advice of Corporal Cooper arguably may have been disrespectful. The refusal arguably may have been made contemptuous by the efforts of Petitioner to conceal his conversation with Deputy Akins. However, disrespectful and contemptuous disregard of advice is not insubordination. Corporal Cooper did not treat the disclosure by Petitioner to Deputy Akins as insubordination. Respondent's written policies require Corporal Cooper to report insubordination to his superior. Corporal Cooper neither reported the alleged insubordination to Sergeant Rogers nor filed a written report of insubordination. Corporal Cooper explained, in substance, that he routinely does not write up subordinates because he needs to maintain a working relationship with his deputies. Corporal Cooper thinks he may have filed a verbal report with the shift commander but, again, does not recall the exact words in his verbal report. The shift commander does not recall such a report. When Deputy Akins informed Corporal Cooper that Petitioner had disclosed the allegations by Ms. Hart earlier that evening, Corporal Cooper did not respond in a manner consistent with a perception that Petitioner had committed insubordination. As Deputy Akins explained during direct examination by counsel for Respondent: Q. And what did Corporal Cooper tell you in that conversation? A. He asked me if I had spoken with Deputy Collinsworth and I advised him yes. Q. Did he say anything in response to that? A. He stated he had a feeling that Collinsworth might have called me. TR at 113. Corporal Cooper had no reason to believe that Petitioner "might" commit insubordination. Petitioner had never disobeyed orders from Corporal Cooper in the past.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of insubordination, rescinding the termination of employment, and reinstating Petitioner to his former position of employment with back pay, benefits, and seniority. DONE AND ENTERED this 7th day of October, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 7th day of October, 2005. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 First Avenue, North St. Petersburg, Florida 33701 Keith C. Tischler, Esquire Jolly & Peterson, P.A. 2145 Delta Boulevard, Suite 200 Post Office Box 37400 Tallahassee, Florida 32315 Aaron C. French, Esquire 4600 North Habana Avenue, Suite 17 Tampa, Florida 33614 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
Findings Of Fact The Petitioner is a black woman. From January, 1978, until May 5, 1979, the Petitioner was employed as a clerk/typist by the Respondent. The Petitioner applied for employment with the Respondent during January, 1978. The positions she applied for were, in order of preference, Deputy Sheriff, Custody Officer, and clerk/typist. At the time of her application, the Petitioner was not a citizen of the United States, and she was therefore not eligible for either of the first two positions. She received minimally passing scores on the typing test (after one failure) and on the spelling test; she was hired as a clerk/typist. She was placed on the night shift at the vice squad (now called the Organized Crime Bureau). Initially, the Petitioner worked a portion of the day shift so that she could become familiar with the responsibilities of the position through exposure to other clerks in the Bureau who performed the same functions during other shifts. The Petitioner's responsibilities were to type or transcribe the vice officers' reports from tape recordings, to answer the telephone and take messages where appropriate, and to relay messages to agents in the field by radio. It was necessary for the Petitioner to become familiar with police language, to get used to the peculiarities of the agents' taping of reports, and to learn to use the radio, including the "10-code." The duties were not such, however, as to require prolonged training, and the Petitioner was adequately oriented into the job. The Petitioner's performance at this job was inadequate. Her typing and spelling were very poor, and she misunderstood or mistranscribed portions of the tapes frequently. Often her work needed to be redone or completed by the clerks who worked the day shifts. Mistakes of this sort are common in a position such as that the Petitioner hold during a training period, but the Petitioner's performance did not improve. Her first evaluation was completed on February 22, 1978. On a point system which has fifty-nine possible points, the Petitioner was given a total rating score of 12, which is a "conditional" rating. The evaluation included the following summary of her performance: Miss Voce has a great deal of trouble with typing and spelling. She has not grasped the procedures or the complexities of the vice and narcotic office work. Perhaps she would have more ability in some other division where there is not so much typing. In Vice-Intelligence Division she is required to type reports, search warrants and state- ments, keep files up to date, answer phones, dispatch on the radio and many other tasks. She is willing to do what she is told, but her ability is not commensurate with her willingness. By memorandum dated March 8, 1978, her supervisor recommended that her employment be terminated on account of inability to fulfill the requirements of the position. Rather than terminating her, the Respondent authorized to transfer her from the Vice and Intelligence Unit, where her work was a significant handicap to the operation of the office, to the Central Sub-Station. The transfer was effective March 23, 1978. At the Central Sub-Station, the Petitioner's primary responsibility was answering all incoming telephone calls, directing the calls to the appropriate person, and taking messages where appropriate. She was also called upon to type a daily log, and to do miscellaneous duties. Initially, her performance in this job was satisfactory. On December 7, 1978, the Petitioner's second formal evaluation was completed. Of a possible total of fifty-two points, the Petitioner was given a total rating score of 30, a "satisfactory" evaluation. She received a merit pay increase. At approximately that time, however, the Petitioner's performance of the job began to deteriorate. She became lax in the handling of calls, and was frequently not at her desk. She was frequently rude on the telephone, and did not relay all messages she received. Her supervisors counseled her about being away from her desk and about being polite on the telephone, but her performance did not improve. The Petitioner was not getting along with coworkers, and her performance as an employee was steadily declining. During approximately April, 1979, the Petitioner herself went to the Respondent's Personnel Director and requested that she be transferred to another position. Her supervisor apparently agreed that a transfer would be appropriate, and a transfer to the Central Records Office was authorized by memorandum dated May 2, 1979. The transfer was to be effective May 7, 1979 By memorandum dated May 4, the Petitioner advised her supervisor at the Central Sub-Station that she would not take the job at Central Records because it was for the 4:00 p.m. to midnight shift, and she had family responsibilities which conflicted with that shift. The transfer was to be effective May 7, 1979, and the Petitioner did not appear at the Central Records Office. On May 9, the Petitioner was offered a position as a clerk/typist at the county stockade. She visited the stockade, but decided that she did not want that position because it required her to drive a long way over crowded roads, and because she would have been the only woman at the stockade. On May 9, 1979, a new evaluation was issued with respect to the Petitioner's work at the Central Sub- Station. The evaluation was required because of the transfer. She was given a total rating score of 11 out of 52, a "conditional" rating. On May 10, the Petitioner appeared at the Respondent's personnel office to see her evaluation, tore it up and threw it in the waste basket. She left the office upset. The Respondent removed the Petitioner from its payroll effective May 4, 1979. The Petitioner asserts that she was transferred from the Vice and Intelligence Unit to the Central Sub-Station not because of deficiencies in the performance of her work, but on account of her race. She further asserts that the transfer from the Central Sub-Station to the Central Records Office or to the stockade was motivated by racial rather than by performance factors. The only evidence in support of these allegations that was offered at the hearing is the fact that the Petitioner is black and that she was transferred, and several racially biased statements that were made to the Petitioner by coworkers. The fact of the Petitioner's race does not in itself establish discrimination. Racially biased statements that might have been made in the Petitioner's presence are reprehensible, but do not establish that she was transferred on account of race. Indeed, the evidence conclusively establishes that she was transferred from the Vice and Intelligence Unit to the Central Sub-Station because her job performance was inadequate, and was interfering with the functioning of the office. The evidence further establishes conclusively that the transfer from the Central Sub-Station was motivated by poor job performance. There is no evidence in the record from which it could be concluded that the Petitioner was improperly evaluated, or that any of her supervisors made any decisions with respect to her evaluations or her transfers on account of race. The Petitioner did not offer any evidence which would establish that white employees were treated preferentially by the Respondent, or that black employees were discriminated against. A black woman was given the position at the Vice and Intelligence Unit that the Petitioner once held. She performed very well, was evaluated accordingly, and ultimately left the office only because she had a better opportunity with the Federal Government. There are other black employees of the Sheriff's Office, including the Petitioner's sister, and no evidence was offered to establish that any of these employees have been improperly transferred, or have been treated differently than white employees. The Notice of Failure of Conciliation issued by the Florida Commission on Human Relations was originally issued on May 6, 1980. The Petitioner was not provided an initial copy of the Notice, and the Commission on Human Relations reissued it on May 29, 1980. The Petition for Relief from an Unlawful Employment Practice was filed by the Petitioner within thirty days of service of the reissuance, but not within thirty days of the original issuance.
The Issue Whether the Petitioner, Linda Cattanach, was subject to an unlawful employment practice by Respondent, Florida Department of Elder Affairs, based on her sex or in retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes (2013).2/
Findings Of Fact Petitioner, Linda Cattanach, was at all times relevant hereto an employee of the Florida Department of Elder Affairs. Respondent, Florida Department of Elder Affairs (Respondent or Department), is the state agency responsible for administering human services programs for the elderly and for developing policy recommendations for long-term care. See § 430.03, Fla. Stat. (2015). Respondent operates a Comprehensive Assessment and Review for Long-Term Care (CARES) program to assess individuals for Medicaid long-term care services, whether in a nursing facility, in a private home, or in another community setting. The CARES program operates 19 offices statewide and one central office in Tallahassee. Medical assessments are conducted by CARES Assessors (CAs), and Senior CAs. CAs and Senior CAs are supervised by a Program Operations Administrator (POA) in each office, who reports to a Regional Program Supervisor (RPS). The RPS reports to the Deputy Bureau Chief in Tallahassee, who reports to the Bureau Chief; who, in turn, reports to the Division Director for Statewide and Community- Based Services. In January 2013, Petitioner began employment as a CA in Respondent’s Gainesville office. Petitioner began in a one-year probationary employment status. The record did not clearly establish how many individuals were employed in the Gainesville office with Petitioner. There was an office assistant, Rose Gonzalez; at least four other CAs, including Justin Keels; a registered nurse; and their supervisor, POA Sam Rutledge. Freadda Zeigler was the RPS for the region, which included the Gainesville, Tallahassee, Pensacola, Jacksonville, and Daytona Beach offices. Ms. Zeigler commuted from her home in Broward County. In Tallahassee, Jay Hudson was the Deputy Bureau Chief, Paula James was the Bureau Chief, Carol Carr was the Deputy Division Director, and Marcy Hajdukiewicz was the Division Director. The Gainesville territory covered from Marion County north to the Florida/Georgia line, west to the Leon County line, and east to the Duval County line. CAs were assigned to particular locations within the office’s jurisdiction. CAs traveled to both health care facilities (e.g., nursing homes, assisted living facilities) and private homes to meet with and personally evaluate the needs of the client. Petitioner was primarily assigned to cover facilities in Jasper, Live Oak, Dowling Park, Mayo, and Lake City. Petitioner was in the field conducting evaluations two to three times per week. Her assignments required some long commutes, up to one and one-half hours to Jasper (just south of the Georgia line) and over an hour to Dowling Park and Live Oak. In February 2013, a senior CA position became open in Gainesville. Both Petitioner and Mr. Keels applied and were interviewed for the position. Mr. Keels was selected for the position in March. As senior CA, Mr. Keels did not supervise other CAs in the Gainesville office, but was “put in charge” when Mr. Rutledge was out of the office. When Petitioner began her employment in Gainesville, she was told that a desk was being ordered for her. She was given a folding table to use in her workspace. Petitioner’s workspace was in an open area of the office. Other employees would pass through and occasionally gather in her workspace on breaks or on their way to lunch. Petitioner testified that Mr. Rutledge often came into the open area to interact with other employees around lunchtime to see if anyone wanted to “get food.” Sexual Harassment Claim4/ One day in late March 2013, Mr. Rutledge and Mr. Keels were in Petitioner’s workspace and began discussing a restaurant with the word “cooter” in its name. During this conversation, the two men stood on opposite sides of Petitioner’s worktable, where Petitioner was seated. One of the men asked Petitioner if she knew what the word “cooter” meant, and she responded that she did not. One of the men stated that it meant “vagina.” Petitioner testified that she was embarrassed, uncomfortable, and felt trapped at her worktable where the men stood on either side of her. Petitioner did not report this incident to anyone at first. Petitioner testified that she was afraid that if she said anything, she would be fired. Petitioner’s ambivalence was due in no small part to the fact that Mr. Rutledge was her supervisor. Petitioner described another incident that occurred shortly before the “cooter” incident. Mr. Rutledge called Petitioner into his office and asked her to look at a picture on his computer screen. The picture was of a woman in a bikini. Mr. Rutledge said something to the effect of “that is what my ex-wife used to look like.” Petitioner was embarrassed and left Mr. Rutledge’s office. Respondent maintains a sexual harassment policy of which Petitioner was aware. The policy provides, in part, that “[a]ny employee who believes that he or she is the victim of sexual harassment . . . may make an oral or written complaint to the General Counsel or Director of Internal & External Affairs within 365 days of the alleged discriminatory action.” In April 2013, approximately a week after the “cooter” incident, Respondent’s Inspector General Taroub King began an investigation of Mr. Rutledge, prompted by an anonymous complaint. Among the allegations investigated were that Mr. Rutledge borrowed money from employees, encouraged employees to participate in an investment scheme (or schemes), and utilized employees to witness signatures and notarize documents of a personal nature. The complaint described Mr. Rutledge as maintaining no management structure, lacking basic documentation, and essentially performing no work of any kind. Petitioner was interviewed in connection with the investigation by Ms. King and another investigator from the Inspector General’s office on April 4, 2013. Petitioner was placed under oath and her interview was audio-recorded. Petitioner was questioned about the allegations in the complaint against Mr. Rutledge, and she fully cooperated with the investigators. At the end of the interview, Ms. King asked Petitioner if she had any other information to relay. At that point, Petitioner reported that inappropriate comments and banter of a sexual nature occurred in the office. Petitioner did not report any other details. Ms. King asked Petitioner for particular examples. In response, Petitioner shared the “cooter” incident and the “bikini” incident. All of the employees in the Gainesville office were interviewed by Ms. King. Mr. Keels was interviewed after Petitioner and was questioned about the “cooter” incident and office banter of a sexual nature. At the final hearing, Petitioner maintained that there was both frequent sexual banter and inappropriate conversations in the Gainesville office. She testified that the staff nurse once referred to a patient as having “balls the size of a bull.” She also reported that Mr. Rutledge made hand gestures indicating that Ms. Gonzalez was large-breasted. Petitioner did not share these details with Ms. King during her interview. As with the “bikini” incident, Petitioner was able to walk away from, or otherwise ignore, the comments and gestures of a sexual nature in the workplace. Upon her return to Tallahassee, Ms. King reported her investigative findings to members of Respondent’s Human Resources Department, the Deputy Secretary, and the Director of Internal and External Affairs. Petitioner testified that she sent Ms. King an email sometime after her interview asking whether more information was needed from Petitioner regarding her complaints of inappropriate sexual comments in the workplace. Ms. King denied that Petitioner sent any follow-up email of that nature. Ms. King did recall an email from Petitioner requesting public records. Respondent terminated Mr. Rutledge on April 8, 2013, four days after Petitioner was interviewed by Ms. King. The decision to terminate Mr. Rutledge was made by management in the Tallahassee office. Both Mr. Hudson, the Deputy Bureau Chief, and Ms. James, the Bureau Chief, traveled from Tallahassee to Gainesville to terminate Mr. Rutledge. Ms. Zeigler was likewise present at the Gainesville office for the termination of Mr. Rutledge. However, Ms. Zeigler claimed not to have been informed ahead of time about the termination. She said the appearance of Mr. Hudson and Ms. James at the Gainesville office on April 8, 2013, was a surprise to her. In early May 2013, a significant remodel of the Gainesville office was initiated. The remodel created confusion in the Gainesville office, with furniture being moved around, office files and equipment being boxed up, and the general mess associated with construction in the workplace. At some point, Petitioner lost track of an entire box of her files and later found them on the floor under a pile of chairs she assumed the painters had moved.5/ Alleged Acts of Retaliation Respondent named Mr. Keels as Acting POA, effective April 8, 2013. Ms. James testified, credibly, that Mr. Keels was named Acting POA because he was the senior CA in the office. Mr. Keels was questioned about the “cooter” incident during his interview by the Inspector General. Thus, there is sufficient evidence from which the undersigned can infer that Mr. Keels was aware Petitioner had reported the “cooter” incident to the Inspector General during the investigation of Mr. Rutledge. Petitioner complained that she was ostracized by other employees in Gainesville after Mr. Rutledge was terminated. Petitioner also complained that Mr. Keels treated her unfairly in his capacity as acting POA. First, Petitioner maintained that Mr. Keels increased her caseload, from about 27 to about 44 cases, which made her job very difficult given the lengthy commutes to her assigned facilities. Petitioner introduced no evidence, other than her testimony, that her caseload substantially increased after Mr. Keels became acting POA. Petitioner complained to the Inspector General on April 4, 2013, that her caseload under Mr. Rutledge’s supervision was inordinately heavy. Petitioner also shared with the Inspector General that Mr. Keels, in his capacity as senior CA, was unfair in case distribution. Further, Petitioner testified that although her caseload was heavy in early May, it later declined. The evidence does not support a finding that Mr. Keels assigned Petitioner an inordinately heavy caseload following her complaints to the Inspector General and Mr. Keels’ temporary promotion to acting POA. Sometime after Mr. Keels became acting POA, he took away Petitioner’s worktable. According to Petitioner, Mr. Keels said he took the table for use in the conference room for “staffings,” a term that was not explained by any witness. Petitioner testified there were other tables available in the meeting room which could have been used for that purpose. For the next two months, Petitioner completed her in- office work at a window ledge. She placed her laptop and files on the ledge and utilized extra chairs for additional workspace. In June 2013, Petitioner was presented with a new desk. Petitioner’s Termination During Mr. Rutledge’s tenure as POA, the Bureau had rolled out significant changes to the CARES program. Those changes had not been implemented by Mr. Rutledge, much less communicated to the Gainesville staff. After Mr. Rutledge’s termination, CARES management began monitoring the Gainesville office very closely. During the next few months, Ms. Zeigler was more frequently present in the Gainesville office and was in almost constant contact with Mr. Hudson regarding the activities of the Gainesville office. However, Ms. Zeigler was unaware of any discussions Mr. Hudson may have had with the Bureau Chief or the Division Director. Shortly after Mr. Rutledge’s departure, Ms. Zeigler met with the Gainesville staff to explain new procedures. Among the procedures was a requirement to include on employees’ GroupWise calendars, an entry of every planned field visit. The CAs’ GroupWise calendars were accessible not only to their immediate supervising POA, but also to the RPS and higher-level managers. The calendar was an important management tool used by Respondent both to perform quality assurance checks and to monitor employee performance. On May 9, 2013, Ms. Zeigler sent the following email to the CAs in Gainesville: Good afternoon all, As mentioned in the past meeting in your office, it was requested that I be given access to your GroupWise calendars to help monitor accountability for field visits with Specialization. I would like to thank each of you for adhering to the request, and would like to ask each of you to add the following information to your calendars: First and Last name of client visiting Facility name where client will be visited Home address if visiting client in the home Purpose of visit Time of visit (include estimated travel time) * * * This information is needed for accountability purposes, and also used to check that assessments are being entered in CIRTS, per the attached CARES policy #PPH Update No2011_2, that is still currently in place. Effective immediately, I would like for each worker to add this information to their calendars prior to making a visit. You should also add any approved leave time that you will be taking as well. If your visit schedule changes, it needs to be noted on the calendar with the appropriate change. Please revisit this memo for a thorough understanding. On May 14, 2013, Ms. Zeigler sent an email to Petitioner informing Petitioner that information on her calendar was incorrect. On May 31, 2013, Ms. Zeigler issued a formal counseling memorandum to Petitioner for failure to list her client visits on her GroupWise calendar as directed. The following excerpt is especially relevant: You were instructed to submit your plans for field visits [sic] travel at least one day in advance of the actual travel. A review of your calendar clearly showed that you either did not put any information on your calendar as required and/or you entered incorrect data, for the following dates: April 16, 2013, May 6, 2013, May 7, 2013, May 9, 2013, May 10, 2013, and again on May 14, 2013. At the final hearing, Petitioner did not deny that she failed to enter required information on her calendar. Instead, Petitioner offered a series of excuses, including system connectivity issues, her travel schedule, and confusion regarding a transition from GroupWise to the Outlook calendar system. With regard to connectivity, Petitioner explained that there were problems connecting to the Department’s computer system from remote locations and, occasionally, in the Gainesville office. Petitioner likewise testified that she would not return home until 6:00 p.m. or later on days she traveled to Jasper and other remote field locations. Petitioner complained that connectivity issues prevented her access to GroupWise from home, and thus, was unable to enter the visits scheduled for the following day. Petitioner testified that she complained to the information technology department in Tallahassee about connectivity issues and diligently tried to address these concerns. Petitioner introduced in evidence an email exchange between herself and Ms. Zeigler in which she complained about, and Ms. Zeigler resolved, an issue with Petitioner’s access to CIRTS – the Department’s online case input system. The email string is dated July 17, 2013, well after the date of Petitioner’s documented missing calendar entries. Further, the email relates to access to the case input system and is irrelevant to Petitioner’s claim of issues with connectivity to the computer system in general. Finally, Petitioner explained that the Department changed from GroupWise to the Outlook system, and she was confused about whether to continue adding entries on her GroupWise calendar during that transition. In the May 31, 2013, counseling memorandum, Ms. Zeigler referred to the program’s transition from the GroupWise to the Outlook calendaring system, as follows: The Microsoft Outlook Email and Calendar program was installed on all computers in DOEA, migrating existing GroupWise information to the new Outlook program on May 28, 2013. Instruction videos and online documentation were made available to all DOEA employees to learn how to utilize the new program. You were instructed to give proxy access to the RPS via email from the acting Supervisor. It is evident that you were successful in accessing the Outlook Calendar, as you sent the RPS a request to share your calendar on May 30, 2013. On the same date, you left the office to go to the field at 12:55 p.m., and failed to update/place any information on your calendar before departing. The sign in sheet indicated that you were going to a nursing facility. This repeated failure to comply with procedures is unacceptable. As a result of this failure, your supervisor was unaware of what facility and/or client you were seeing and how long it would take time wise for the field visit. You effectively prohibited your supervisor from knowing your whereabouts and/or the client(s) to be seen. In light of the facts, Petitioner’s alleged confusion about whether to continue adding information to her GroupWise calendar is not credible. Petitioner did not send an Outlook calendar-sharing invite to Ms. Zeigler until May 30, 2013, well after her missing GroupWise calendar entries of April 16 and May 6, 7, 9, 10, and 14, 2013. Further, Petitioner failed to calendar her appointments the same day she sent Ms. Zeigler the calendar- sharing invitation, thus belying any excuse that she had connectivity issues, at least on that particular date. In an effort to minimize the significance of her failure to document her field visits on her calendar, Petitioner testified that she noted her field visits on a daily sign-in log physically maintained in the Gainesville office. Petitioner introduced a composite exhibit purporting to be copies of the daily sign-in logs from April, May, June, and July 2013. Even if the exhibit was reliable evidence of Petitioner’s whereabouts, the logs are irrelevant to the issue of whether Petitioner complied with the electronic calendaring requirement. No evidence was introduced to support a finding that the daily sign-in log was an acceptable alternative to Ms. Zeigler’s specific, clear, and repeated direction to all Gainesville employees to use their GroupWise, and later Outlook, calendars to note their planned field visits with required details. The evidence conflicted as to whether Ms. Zeigler’s May 31, 2013, counseling memorandum constituted discipline. Petitioner testified that the memorandum was a training tool. Ms. Zeigler testified alternately, and with hesitancy, that the memorandum was “almost like a verbal warning type of thing,” and “unofficially formal.” On cross-examination, Ms. Zeigler testified, “I don’t think that that would be a reason to fire somebody after one counseling memo. I mean that would be absurd.” Ms. James testified that the memorandum constituted a first-step disciplinary action. Ms. James explained that a counseling memorandum is preceded by a verbal warning from the supervisor. The Department’s disciplinary policy was not introduced in evidence. In light of Petitioner’s probationary employment status, the issue of whether the counseling memorandum constituted discipline is largely irrelevant. The counseling memorandum is evidence of poor job performance during Petitioner’s probationary employment period. At some point after Mr. Rutledge’s termination, the Department advertised for the open POA position. Both Petitioner and Mr. Keels applied for the position. Mr. Hudson and Ms. Zeigler conducted interviews for the position. Petitioner was not responsive to Ms. Zeigler’s efforts to schedule Petitioner’s interview for the position. Eventually, Ms. Zeigler did interview Petitioner for the position. Ms. Zeigler also interviewed Mr. Keels. In June 2013, Ms. Zeigler prepared performance evaluations of the Gainesville staff. Ms. Zeigler had little knowledge of staff performance prior to Mr. Rutledge’s termination, as Ms. Zeigler was new to the region. Ms. Zeigler gave all the Gainesville employees ratings of “3,” satisfactory performance, across the board. In late July 2013, Ms. Carr and Ms. Hajdukiewicz from the Tallahassee office came to the Gainesville office and personally terminated Mr. Keels. Ms. James did not directly make the decision to terminate Mr. Keels, but she agreed with the decision. Ms. James stated that Mr. Keels was terminated based on his actions after he became acting POA in Gainesville. Ms. James did not elaborate and neither counsel asked any follow-up question. On July 31, 2013, Ms. Carr and Ms. James came to the Gainesville office from Tallahassee, met with Petitioner, and offered her a choice of resignation or termination. Petitioner chose termination. That same day, after leaving the office, Petitioner called the Department of Human Resources and requested to change her termination to resignation. The request was granted. Petitioner did not ask why she was being terminated or asked to resign. Petitioner testified that neither Ms. Carr nor Ms. James gave her a reason. Ms. Zeigler resigned from the Department in October 2013. The circumstances of Ms. Zeigler’s resignation were not introduced in evidence. In that regard, Ms. Zeigler testified as follows: I had a lot of questions with the State that probably should not come up here, but there are a lot of questionable things that were going on with the State at the time which led to my resignation. So I did not question it. I did not question [Petitioner’s] termination based off of my ability to run the office, because I almost felt like it was being run above me.[6/] Ms. Zeigler’s testimony was introduced in support of Petitioner’s claims. However, Ms. Zeigler had difficulty recalling events, including the timing of relevant events. Of note, Ms. Zeigler testified that she was the RPS for Gainesville about a year, meaning she would have begun in the position in October 2012. Later, she testified that Mr. Rutledge was terminated “not long after I was there [as RPS].” Her testimony was hesitant, hedging, and sometimes conflicting. Ms. Zeigler testified that she was in daily contact with Mr. Hudson about issues in the Gainesville office after Mr. Rutledge was terminated, but claimed to have had no advance notice of either Mr. Keels’ or Petitioner’s termination. As such, the undersigned finds Ms. Zeigler’s testimony to be both unreliable and unpersuasive. Ms. Zeigler’s counseling memorandum to Petitioner regarding calendaring is credible evidence of Petitioner’s job performance which cannot be discounted by Ms. Zeigler’s after-the-fact, and apparently biased, testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Florida Department of Elder Affairs, did commit an unlawful employment practice as to Petitioner, Linda Cattanach, and prohibiting the practice. However, under the specific facts of the case, the undersigned recommends no affirmative relief from the effects of the practice. DONE AND ENTERED this 5th day of October 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2015.
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of national origin in violation of the Florida Civil Rights Act of 1992, as amended.1/
Findings Of Fact Mr. Charlot is a Black male of Haitian descent. Mr. Charlot was employed by the County in the Department for almost 16 years before he was terminated in December 2008. The Department operates Miami International Airport (Airport). At the time of his termination and all times material hereto, Mr. Charlot's classification was an Airport Automotive Equipment Operator II, operating heavy machinery in maintenance work at the Airport. At all times material hereto, the majority of the Department's employees were Hispanic, including the supervisors. Mr. Charlot's Dismissal before the Aviation Director By letter dated December 12, 2008, the Aviation Director, José Abreu, dismissed Mr. Charlot from employment with the Department and the County, effective the close of business on December 4, 2008, upholding the "recommendation by management" for dismissal. Mr. Abreu indicated, among other things, that, in upholding the recommendation, he considered the Disciplinary Action Report (DAR) and Mr. Charlot's work history. Furthermore, Mr. Abreu indicated, among other things, that his decision on termination was based in part upon Mr. Charlot's violations of the County's Personnel Rules, Chapter VIII, Section 7, Paragraphs (I), (R), and (BB), related to Mr. Charlot's arrest on grand theft charges; and that the basis for his (Mr. Abreu's) final decision was based upon Mr. Charlot's disregard for County Personnel Rules. Additionally, Mr. Abreu indicated that, because Mr. Charlot failed to attend the meeting at which Mr. Charlot would have been able to appeal management's recommendation, he (Mr. Abreu) had no additional factors to consider in making his decision. Consequently, Mr. Charlot was dismissed from employment with the Department and the County, effective close of business on December 4, 2008. The DAR dated September 25, 2008, was considered by Mr. Abreu. The DAR notified Mr. Charlot that he was charged with violating the County's Personnel Rules, Chapter VIII, Section 7, Paragraphs (I), (R), and (BB), which provides: (I) that the employee has been guilty of conduct unbecoming an employee of the County whether on or off duty, provided allegations shall be specific and shall describe the conduct which is the basis of the charge; (R) that the employee has misappropriated County funds, appropriated County property for personal use, or illegally disposed of County property; and (BB) that the employee has violated any of the provisions of the Act or the Rules. The DAR dated September 25, 2008, set forth revised facts. Those revised facts state that, on September 24, 2008, Mr. Charlot was re-arrested, arraigned, and formally charged with a third degree felony for theft of County property based upon an incident occurring on August 5, 2008; and that, also, as a result of the formal charge, the County automatically placed Mr. Charlot on suspension without pay. Additionally, the revised facts recite facts stated in a DAR dated August 6, 2008, issued as a result of the incident occurring on August 5, 2008, which cited the same violations of the County's Personnel Rules. In essence, the DAR facts state that, on August 5, 2008, Mr. Charlot was on an overtime assignment, from 11:00 p.m. through 7:00 a.m., repairing asphalt; that his duty was to operate the scrubber/sweeper, sweeping around the site prior to the asphalt being placed; that, at approximately 3:00 a.m., Mr. Charlot advised Kendall Davis that he would return and left the worksite; that, shortly thereafter and according to an Airfield Security Incident Report, a law enforcement officer observed Mr. Charlot on Airport property, not at the worksite, with two bags of copper wire, weighing approximately 140 pounds; that Mr. Charlot left the worksite and was found committing a crime against the County by stealing County material; that Mr. Charlot was in an area in which he was not authorized and found in a vehicle no longer in service and not able to be driven; and that the DAR was warranted because of Mr. Charlot's actions of taking County material, leaving the worksite and not performing his assigned duties while on County time. Further, the facts in the DAR dated September 25, 2008, stated that Mr. Charlot was arrested on May 11, 2006, for petty theft, but had failed to advise the Aviation Director or anyone in the chain of command about the arrest. Also, the facts stated that his failure to so advise of the arrest was a violation of Department's Rules which placed an obligation on County employees to notify their Department Director or his/her designee of an arrest, whether on or off duty, within a reasonable amount of time, not to exceed three calendar days, of the arrest. A copy of the Department's policy regarding arrests was included with the DAR. Additionally, a copy of the disposition of the charge was included with the DAR, which showed that Mr. Charlot was not prosecuted. The DAR dated September 25, 2008, concluded that the DAR was warranted based on Mr. Charlot's actions of taking County material, being formally charged with a third degree felony, leaving the worksite, not performing his assigned task while on duty, and failing to report a prior arrest to the Department. Mr. Charlot's responded to the DAR dated August 6, 2008, and his response was also included with the DAR dated September 25, 2008. The response stated, among other things, that the State Attorney's Office had decided that the evidence was insufficient to charge Mr. Charlot with committing a crime and took no action on the charge; that Mr. Charlot was on his lunch break, with his identification, and it was not uncommon for employees to take a lunch break away from the worksite; and that Mr. Charlot advised Mr. Davis that he (Mr. Charlot) was taking his lunch break and would return. Also, the response included affidavits from several employees stating that it was normal for employees to take lunch breaks away from the worksite and attesting to Mr. Charlot's performance as an employee and to his character. Mr. Charlot's Appeal of the Termination through Arbitration Having been terminated from his employment by Mr. Abreu, Mr. Charlot appealed the termination through arbitration. On September 29, 2009, the appeal was heard by a Hearing Examiner of the American Arbitration Association. The Hearing Examiner issued a written recommendation on November 22, 2009. The Hearing Examiner's recommendation was to sustain Mr. Charlot's dismissal. Mr. Charlot's Dismissal before the County Manager After arbitration, the Hearing Examiner's recommendation was considered by the County Manager. By letter dated December 3, 2009, the County Manager sustained and confirmed Mr. Charlot's dismissal from employment with the County. The Incident on August 6, 2008 Mr. Charlot was arrested and charged with burglary on August 6, 2008. He obtained counsel. The State Attorney's Office decided to nolle prose, and the charge against Mr. Charlot was dismissed. He returned to work. However, subsequently, in September 2008, Mr. Charlot was re-arrested and arraigned on a third degree felony count of grand theft regarding the incident on August 6, 2008. On September 24, 2008, the State Attorney's Office filed an information charging Mr. Charlot with the third degree felony count of grand theft. The evidence is insufficient to demonstrate that the County played a part in or influenced the action by the State Attorney's Office to re-arrest Mr. Charlot, arraign him on a different crime, and file an information against him on the different crime. By letter dated September 25, 2008, Mr. Abreu advised Mr. Charlot, among other things, that he was suspended indefinitely in accordance with the "Code of Miami-Dade County, Section 2-42, Paragraph (22), which provides: 'For the automatic suspension of any person from the County service immediately upon being indicted by any grand jury or upon having an information filed against him by any prosecuting official, such suspension to continue until any such indictment or information shall have been disposed of by a trial and conviction or acquittal of the accused or by any dismissal or quashing or reversal of the same.'" The letter further advised Mr. Charlot that, if the charges were reduced or dropped, it was his (Mr. Charlot's) responsibility to immediately advise Human Resources; and that, even if the charges were reduced or dropped, the Department may still pursue any administrative action deemed necessary. The evidence demonstrates that Mr. Charlot's immediate suspension was in accordance with the County's Code. Mr. Charlot was unable to afford the continuation of representation by counsel. He entered into a plea agreement, and the charge was nolle prossed.2/ Prior Disciplinary Action Against Mr. Charlot In October 2004, Mr. Charlot was suspended for three days for an incident that occurred on July 2, 2004. He served the three-day suspension from October 13 through 15, 2004. Mr. Charlot received a DAR in July 2004 for the incident, which stated, among other things, that his minor child was with him on a sweeper during his work hours. Also, the DAR indicated previous disciplinary action taken against Mr. Charlot in November 2003 and December 2002, resulting in a five-day suspension and a three-day suspension, respectively; and indicated that the County would not tolerate continuous violation of its rules. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incident on July 2, 2004, was unreasonable or discriminatory. In November 2003, Mr. Charlot received a five-day suspension for an incident that occurred on October 11, 2003. He served the five-day suspension from November 18 through 22, 2003. Mr. Charlot received a DAR on October 14, 2003, which stated, among other things, that he failed to report to work during his scheduled work shift hours and failed to notify his supervisor that he would not be reporting to work. Also, the DAR indicated previous disciplinary action taken against Mr. Charlot for leaving work prior to the scheduled end of his shift, without swiping out of his shift, resulting in a three-day suspension. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incident on October 11, 2003, was unreasonable or discriminatory. In December 2002, Mr. Charlot received a three-day suspension for an incident that occurred on November 26, 2002. He served the three-day suspension from January 15 through 17, 2003. Mr. Charlot received a DAR on December 2, 2002, which stated, among other things, that he left the worksite in his personal vehicle during his regularly scheduled shift hours, without swiping out and without notifying his supervisor. In a memorandum dated December 30, 2002, the Assistant Aviation Director, among other things, advised Mr. Charlot of the suspension and further advised Mr. Charlot that, should he need to leave the worksite to respond to personal matters, he was required to swipe out and to ensure that his supervisor was notified. As to the incident on November 26, 2002, at hearing Mr. Charlot testified that school personnel at the school that his child was attending contacted him regarding his child experiencing a diabetic episode; and that he immediately departed the worksite for the school to give his child an insulin injection. His testimony is credible. Further, no evidence was presented to indicate that the County failed to consider his explanation at the time of the disciplinary action. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incident on November 26, 2002, was unreasonable or discriminatory. In July 1998, Mr. Charlot received a written reprimand for various incidents occurring in May 1998. He received a DAR on May 26, 1998, regarding the incidents. The written reprimand indicated, among other things, that Mr. Charlot engaged in insubordinate behavior and took an unauthorized break. Additionally, the written reprimand advised him that further such incidents would result in progressive disciplinary action up to and including termination. The evidence is insufficient to demonstrate that the County's disciplinary action, regarding the incidents in May 1998, was unreasonable or discriminatory. Alleged Employees Similarly-Situated to Mr. Charlot Mr. Charlot asserts that there are other Department employees who are similarly-situated to him and who are Hispanic. The other employees are Robert Chacon, Rodolfo deArmas, and Ricardo Mendez. No dispute exists that all of the other employees are Hispanic. Robert Chacon Robert Chacon was employed with the Department for approximately 20 years. Since 2008, he has been an Airport Maintenance Mechanic. The evidence demonstrates, among other things, that, in 2009, Mr. Chacon was suspended due to an incident not associated with the Department and which occurred outside of the workplace; that in 2001, he was issued a DAR, which he grieved, but lost; that he was a supervisor, but was demoted and is no longer a supervisor; and that he has been suspended four times. The evidence fails to demonstrate the details of or the circumstances of the suspensions, the DAR, or the demotion. Furthermore, the evidence demonstrates that Mr. Chacon has not been charged with stealing from the Department. Rodolfo deArmas Rodolfo deArmas has been employed with the Department since 1984. He has been an Equipment Operator II for more than 15 years. The evidence demonstrates that, in 1991, Mr. deArmas was charged with a criminal offense which was not associated with the Department and for which he was not convicted; and that he has been subject to two disciplinary actions. The evidence fails to demonstrate the details of or the circumstances of the criminal offense or the disciplinary actions. Ricardo Mendez Regarding Ricardo Mendez, the evidence demonstrates that the Department charged Mr. Mendez with violating the County's Personnel Rules and that one of the Rules was the same one Mr. Charlot was charged with violating, i.e., Personnel Rules, Chapter VIII, Section 7, Paragraph (R); and that Mr. Mendez was dismissed and terminated in 200l for the violation. Among the alleged facts associated with Mr. Mendez's violation of Personnel Rules, Chapter VIII, Section 7, Paragraph (R) were that Mr. Mendez submitted more hours of work than he had actually worked and was paid for more hours than he had actually worked. Furthermore, the evidence demonstrates Mr. Mendez appealed his termination through arbitration, as did Mr. Charlot. However, the evidence demonstrates that, unlike in Mr. Charlot's situation, a hearing examiner found facts favorable to Mr. Mendez and recommended reinstatement of Mr. Mendez. The County reinstated Mr. Mendez.
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 discrimination complaint of Venis Charlot. S DONE AND ENTERED this 26th day of April, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 26th day of April, 2012.
The Issue Whether the Department of Insurance (DOI), now Department of Financial Services, discriminated against the Petitioner on the basis of national origin or age contrary to Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner is Elamir G. Ghattas, a naturalized American of Egyptian birth, who is 71 years of age. The Petitioner was employed by the DOI for 18 years. He was assigned to maintain the law library at the DOI in 1985, and performed those duties until 2002. His job title at that time was "Records Specialist," and his supervisor was Beverley DiGirolamo, who was the office manager of the Legal Division. In 2002, he was transferred from his duties in the law library to duties in the Service of Process Division (SPD) of DOI. His new supervisor was initially Carolyn Ash, who was asked to sign Petitioner's timesheet, and who was at a lower pay grade (13) than the Petitioner's pay grade (16). After he brought this to management's attention, Pam Edenfield was assigned to sign his timesheet. His duties involved maintaining and filing documents received by the DOI relating to the service of process in the legal cases filed throughout the state. The work of the division has increased greatly due to a change in the statutes, and the SPD could not process the increased workload with its existing employees. To resolve the workload issues, personnel from other portions of the legal department were transferred to the SPD. The Petitioner was one of approximately four individuals who were transferred from Legal Services Division to SPD. The decision to move the Petitioner was made by Ms. DiGirolamo and Ms. Edenfield based upon his low workload in the library and the high workload in SPD. After the Petitioner was moved, his duties were assumed as an additional duty by one of the legal secretaries who spends between four and eight hours on the activity per month. The basis for his move was explained to Petitioner by Ms. DiGirolamo and Ms. Edenfield, and by Mr. DowDell, who was their supervisor. Following his transfer, the Petitioner's performance suffered, and when he was formally counseled about it, he ultimately resigned and retired.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 26th day of August, 2004, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2004. 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 Elamir Ghattas 811 Chestwood Avenue Tallahassee, Florida 32303 Dennis Silverman, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
