The Issue Whether Respondent, Holmes Regional Medical Center, is guilty of violating Subsection 760.10, Florida Statutes (2003), by allowing Petitioner, Stephanie Francis, to be harassed because of her race and denying her reasonable accommodations for her pregnancy during her employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is an African-American female who was employed by Respondent as a Certified Nursing Assistant. At the time of the incidents that led to her dismissal from employment, she was pregnant although her condition was not apparent and was unknown initially, at least, by her employer. Respondent is a Florida corporation that operates a major hospital facility in Brevard County, Florida. Respondent is subject to Chapter 760, Florida Statutes (2003). Having recently received her certification, Petitioner's employment began in October 2002. Several months after she became employed, Petitioner requested and received permission to attend Health Unit Coordinator classes. This training would provide the opportunity for career advancement. In order to enable Petitioner to attend Health Unit Coordinator classes, adjustments were made in the work schedules of Petitioner and her co-workers. As the classes were during the day, Petitioner began working night shift. Shortly after she began taking Health Unit Coordinator classes, Petitioner became aware that she would not receive additional pay for attending the training. Petitioner, whose work had been satisfactory, had a marked change in attitude after she learned that she would not receive additional pay. Beginning in April 2003, Petitioner requested numerous transfers from the acute care unit to which she had been initially assigned. Her immediate supervisor, Pegreen Bibby, approved each of Petitioner's transfer requests. Petitioner was not transferred. No evidence was received regarding the reason(s) why Petitioner was not transferred. Petitioner indicated that she was not aware of why she was not transferred. On April 23, 2003, a co-worker complained that Petitioner spoke to a patient in an inappropriate manner. An investigation confirmed the inappropriate conduct. Petitioner was counseled by her immediate supervisor and received a Counseling Memo which noted that Petitioner had a "poor attitude." Petitioner refused to sign the Counseling Memo. On April 28, 2003, Petitioner's immediate supervisor received a complaint from a patient about Petitioner's conduct. An investigation revealed that Petitioner had treated the patient callously and had made several inappropriate comments to the patient. In the course of the investigation, Licensed Practical Nurse Linda Sweeney (LPN Sweeney) commented that Petitioner made inappropriate comments and had a bad attitude, which according to LPN Sweeney was "normal behavior" for Petitioner. LPN Sweeney is African-American. As a result of the April 28, 2003, incident and related investigation, Petitioner received a written warning and information about the Employee Assistance Program. Petitioner refused to sign the written warning. On March 3, 2003, Petitioner presented a note from a gynecologist stating that she required light-duty and that she could not lift more than 20 pounds. Petitioner did not offer an explanation for the note and her supervisor, unaware that Petitioner was pregnant, did not inquire, believing that the basis for the light-duty was a private matter. Petitioner did not indicate that she had made her co-workers aware of her pregnancy. Petitioner's job description requires her to have the ability to lift up to 40 pounds unassisted and to lift, assist, bathe, and dress patients. No positions were available in the acute care unit that did not require fulfillment of the job description. Light-duty work is reserved for employees who suffer job-related injuries. As a result, Petitioner was not scheduled for work. On May 14, 2003, Petitioner presented a note indicating that she was able to return to work without restrictions. She was immediately rescheduled for work. Upon her return to work, her co-workers complained that Petitioner's attitude was "hostile." Co-workers, both African-American and Caucasian, complained that Petitioner resisted helping them. Petitioner was observed wearing headphones and reading a newspaper for approximately two hours while co-workers performed her and their responsibilities. As a result of Petitioner's demonstrated poor attitude and lack of job-effectiveness, Respondent initiated the final stage of its progressive disciplinary process: "decision day." On May 23, 2003, Petitioner received a Counseling Memo which documented her inappropriate work behavior, co-workers' complaints, and failure to follow Respondent's employee rules. Again she refused to sign the Counseling Memo. When "decision day" is invoked, an employee is given paid leave and presented the opportunity to offer a written action plan addressing the deficiencies listed in the Counseling Memo. Petitioner refused to present an action plan as required. Petitioner refused a memo regarding the Employee Assistance Program, indicating that she had one. Petitioner left work and did not return. As a result, on May 30, 2003, Respondent terminated Petitioner's employment. Petitioner failed to identify a similarly situated employee who received different treatment than did Petitioner. Respondent presented evidence of a Caucasian male employee who had refused to submit an action plan following a "decision day" and was discharged. Petitioner suggests, without offering evidence, that she was "harassed" by LPN Sweeney. As previously noted, LPN Sweeney is African-American. In addition to Petitioner's noted inappropriate behavior, subsequent to her discharge, Petitioner made Respondent aware that she had secretly tape-recorded conversations of her co-workers. She acknowledged this during her testimony. This, of course, is a violation of Section 934, Florida Statutes (2003), and is a punishable as a third-degree felony. While not the basis for her dismissal from employment, Respondent's representative testified that this conduct constituted a dischargeable offense in accordance with Respondent's policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Stephanie Francis Post Office Box 161 Melbourne, Florida 32902 Andrew S. Hament, Esquire Gray, Harris & Robinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on September 26, 2005.
Findings Of Fact Petitioner, Ursula Costantini, was employed by Wal-Mart Store No. 5326 (hereinafter Wal-Mart) from August 2004 until June 2005. While employed by Wal-Mart, Petitioner held the position of a part-time Accounting Office Associate. David Achtley was store manager of Store 5326 at all times material to this proceeding. Associates who were hired prior to the store's opening performed many tasks including assembling counters, putting up labels, unloading trucks, and stocking shelves. Associates also received training. When the store first started employing associates, employees' work schedules were manually typed on a personal computer. At that time, employees' schedules could be modified fairly easily. Shortly before the store actually opened, employees' work schedules began to be generated using a staffing computer program. In order to generate schedules, the program takes into account sales, customer counts, holidays, and other factors including availability sheets completed by associates. When the store was newly opened, much of this information was based on projections. The store in question opened in 2004. In May 2005, Mr. Achtley began analyzing actual sales data to earlier projections. Mr. Achtley realized that his store was short of its projected sales. As a result, he began re-evaluating staffing needs to reflect actual sales data. All employees complete a Customer Service Scheduling Availability form. Employees are not guaranteed to be assigned the hours they request. Petitioner completed a Customer Service Scheduling Availability Sheet for part-time employment on June 10, 2005, on which she stated that she was available to work Mondays through Thursdays from 11:00 p.m. until 4:00 a.m. Under the words "Store Shifts," "overnight" was circled. She indicated on the form that she was not available to work on Saturdays or Sundays. Petitioner completed another scheduling availability sheet on August 19, 2004, to work as a part-time employee. On this availability form, Petitioner stated her availability to work as "Open" any day of the week and at "any time," with the exception of being unavailable to work on Sundays. In June 2005, Wal-Mart's home office directed all stores to stop modifying the computer-generated shifts, and mandated that stores must have associates work the computer generated shifts. Some of the shifts changed in part because the store was not making the sales that had been projected. The only flexibility was to allow a modification of one hour for a business or personal need at the beginning or end of a shift. Petitioner had been working a 11:00 p.m. to 4:00 a.m. shift. However, the computer program did not generate a shift with those time frames. The overnight shift was changed to 10:00 p.m. to 7:00 a.m. Petitioner objected to the schedule change. Doris Riofrio was the operations co-manager of store 5326. Ms. Riofrio supervised Margie Allen, the assistant who was directly over the accounting office. Petitioner contacted Ms. Riofrio to discuss this schedule change. At the time, Mr. Achtley was out of town. However, he phoned Petitioner from an airport when he received a voice-mail message to discuss the schedule change. Mr. Achtley informed Petitioner, that he could no longer modify work schedules as in the past. He explained that he had a position available for her in the cash office from 10:00 p.m. to 7:00 a.m., but that he could no longer offer her a position with an 11:00 p.m. to 4:00 a.m. schedule. Petitioner met with Mr. Achtley and Michele Perez, the personnel coordinator for store 5326. Mr. Achtley again explained that there was no shift from 11:00 p.m. to 4:00 a.m. Petitioner refused to work the 11:00 p.m. to 7:00 a.m. shift. Mr. Achtley also offered to look at other positions in the store that were available that might have a shorter schedule, but she did not accept that offer either. She did not want to work anywhere in the store except the cash office during the hours she had been working. During this meeting, Petitioner did not express that she was being discriminated against because of her age or gender. At the conclusion of the meeting, an Exit Interview form was filled out and signed by Mr. Achtley and Ms. Perez. On the form, Mr. Achtley checked "yes" that he would recommend her for re-hire. The following was written in the comment section: "Refused new job offer, refused to alter availability, available shifts not acceptable to her, good associate, very dependable, would rehire." Petitioner refused to sign the form. Respondent did not hire anyone to replace Petitioner in the accounting office following Petitioner's leaving employment with Respondent. Associates who worked the overnight shift after she left worked the computer-generated shift, not the 11:00 p.m. to 4:00 a.m. shift previously worked by Petitioner. Petitioner presented testimony from former co-workers about personality conflicts within the accounting office, in particular with Myla Gayle, who was the lead associate in the cash office at the time Petitioner was employed there. However, those witnesses acknowledged that the conflicts were not related to age or gender. One of the co-workers who testified on behalf of Petitioner is a 62-year-old male. He continues to work for Respondent. He believes that he was discriminated against on the basis of age when applying for a particular position which was filled by a younger person. However, that person's qualifications or wages are not in evidence. There is no competent evidence that Wal-Mart used age or gender as a criterion in its determining its associates' work schedules, including Petitioner's. Petitioner did not engage in any protected activity prior to her termination from employment at Wal-Mart.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 28th day of February, 2007.
Findings Of Fact Respondent, PPC Products Corporation (PPC), manufactures power transistors, recitifers, diodes, and semiconductors. Approximately 80 percent of its business deals with government contracts. Petitioner is Sandra Boatwright, a black female, who worked for PPC for sixteen years. During her career with PPC she received good evaluations. In September 1989, Ms. Boatwright was working in the marking section of the production department. Her duties included putting product units in an oven and removing the units at the end of the baking period. She was a line leader with two to three employees reporting to her. Ms. Boatwright's immediate supervisor was Blynn Gause, the manager of the production department. Stringent government requirements called for the brands on the products to be permanent. During the summer of 1989, a problem had developed concerning the permanency of the marking or branding of the units. Some of the brandings were coming off prematurely. Mr. Gause asked Dolf Storz an employee in the engineering section to find a solution. In order to eliminate possible causes of the problem, Mr. Storz instituted the use of a logbook in the marking section to record the time the units went in and came out of the oven. Logbooks were a common requirement by the engineering section as a means of gathering data. In September 1989, Mr. Storz took the logbook to the marking section and requested the employees, including Ms. Boatwright, to use it. Ms. Boatwright admitted that, contrary to her initial charge, Mr. Storz was never her supervisor. In the latter part of September 1989, after Mr. Gause had returned from a vacation, Ms. Boatwright complained to him that Mr. Storz had been "acting like a king" while Mr. Gause had been away and requested a meeting to discuss the matter. On October 3 Ms. Boatwright, Mr. Gause, and Mr. Storz met in Mr. Gause's office. The discussion centered around the logbook, which the marking section had not been using. Ms. Boatwright did not feel that it was necessary to use the logbook because the marking section was already using an informal logbook to track the units in production. Mr. Storz's position was that the logbook was required by the production specifications and the informal logbook did not record the times the units went in and came out of the oven. Mr. Gause resolved the issue by requiring Ms. Boatwright and the other employees in the marking section to use the engineering log book. Ms. Boatwright thereafter used the engineering log book. On October 3, 1989, the process specification for the marking process, Device Branding Process Specification No. 200-140 was changed to require that the oven data be recorded in a logbook. This change was called Revision J. Ms. Boatwright signed off on this change. Race had nothing to do with the requirement that a marking logbook be maintained. Mr. Gause never advised Ms. Boatwright that he treated whites better than blacks. There was no disparate treatment of Ms. Boatwright in the terms and conditions of Ms. Boatwright's employment with PPC. In mid September 1989, a vacant position in the Lorlin automatic test area of the quality control department was posted. Ms. Boatwright had previously worked in the quality control department. Some time during late September or early October 1989, Ms. Boatwright approached Marleen Williams Coker (Ms. Williams), the quality manager, and asked to be transferred to that position. Ms. Boatwright knew the position was not a supervisory position. Ms. Williams told her she would agree to the transfer but Ms. Boatwright would have to talk to Mr. Gause about the transfer. Ms. Boatwright told Mr. Gause that she wanted to transfer to the quality control department. Mr. Gause, Ms. Williams, and Mindy Hill, the general manager of PPC, discussed the transfer. Although such a transfer was not common in the company due to the necessity for retraining the transferring employee, they agreed to approve the transfer due to Ms. Boatwright's long-term employment with the company. Although the position in quality control was a lower position than her position in production, Ms. Boatwright's pay was not cut. The transfer was approved in early October with an effective date of October 24, 1989. After the approval was given, applications were discontinued for the posted position, a decision was made to combine two other sections with the marking section, a new position with different tasks and responsibilities was created to oversee the merged sections, and the engineering section was contacted to move an engineering employee to the new position. Sometime between the approval and the effective date of the transfer, Ms. Boatwright changed her mind about wanting to transfer. Mr. Gause, Ms. Williams and Mindy Hill met to discuss Ms. Boatwright's change-of-mind. Ms. Hill decided not to reverse the transfer because of the changes that were being made to accommodate the transfer. Race played no part in the decision to allow the transfer or in the decision not to reverse the transfer. Ms. Boatwright's transfer from production to quality was not involuntary. Ms. Boatwright began working in the testing area of the quality control section on October 24, 1989. There were two other employees in that section, Steve Matthey and Mary Lou Rouse, who was the line leader for that section. Ms. Boatwright and Mr. Matthey reported to Ms. Rouse, and Ms. Rouse reported to Ms. Williams. In January 1990, Ms. Boatwright received a good performance evaluation from Ms. Williams. On February 10, 1990, Ms. Boatwright received a pay increase. On March 14, 1990, Ms. Boatwright filed an employment discrimination charge against PPC, alleging that she had been discriminated against based on race in the terms and conditions of her employment. Specifically, she alleged that in the middle of 1989, that all the white line leaders were promoted to supervisory positions and that she, a black, was not promoted. At the hearing Ms. Boatwright stated this allegation was incorrect and should be for the years 1984 through 1990. She alleged that she received increased scrutiny on her work, and her non-black coworkers did not. She charged that Mr. Gause had told her that he treated whites better than blacks. Her complaint stated that she had inquired about a transfer and later informed Mr. Gause she was not interested in the transfer, but was transferred anyway, resulting in a loss of job responsibilities and supervisory promotional opportunities. Each PPC employee is issued an employee handbook, which contains information on various employment related topics, including promotional opportunities. If an employee was interested in an opening, the employee was to contact his supervisor to make sure he was considered and if an employee was interested in advancing to another position, the employee was to discuss it with his supervisor to determine what additional skills or education might be needed to qualify for the position. Ms. Boatwright never discussed supervisory promotional opportunities with Mr. Gause or Ms. Williams, and never inquired of them what education or skills she might need to qualify for a supervisor position. No evidence was presented to show that Ms. Boatwright ever applied for a promotional opening. The employee handbook states that the final decision to promote would be based on the employee's demonstrated skills and capabilities, the employee's experience, education and service with PPC. One of the biggest factors to be considered is the employee's past work performance. In order to qualify for a supervisor position an employee would have to have knowledge of the area that the employee would be supervising, including the equipment and process specifications, to be able to supervise personnel, including disciplining personnel, and to be able to generate reports. Based on Mr. Gause's observations of Ms. Boatwright's past performance in dealing with personnel, she would not be qualified to handle disciplinary matters. As a line leader, Ms. Boatwright brought all personnel problems to Mr. Gause for him to resolve. In 1989 and 1990 there were no promotions from line leader to supervisor at PPC. No evidence was presented to show whether there were promotions from line leader to supervisor during the years 1984 through 1988. Race played no part in Petitioner's lack of promotion in marking and production. PPC maintains an affirmative action plan and annually files an Equal Employment Opportunity Employer Information Report EEO-1. The affirmative action plan, which is updated annually, sets forth PPC's policy with respect to equal opportunity for all employees in hiring, employment practices, recruiting, training, terms and conditions of employment, and compensation. Ms. Boatwright was in Production I job classification for purposes of PPC's Equal Employment Opportunity reports. From 1987 through 1992, the statistics collected by PPC indicate that PPC utilized more minorities and females in Ms. Boatwright's job classification than were available in the general work force in Palm Beach County. The employee handbook states that leaving early is the same as being absent. Before leaving early, an employee must have prior approval from his supervisor, preferably a day in advance. On April 2, 1990, Ms. Williams fired Audrey Shanahan, a white female, for leaving work without informing her supervisor or department manager. The employee handbook states that if work is not available in the employee's area the employee may be assigned another task. The handbook provides for immediate discharge for insubordination. Each employee is expected to follow the work instructions of his immediate supervisor or any other person having the authority of supervisor. If the employee does not think that the instructions are legitimate, the handbook tells the employee to do the work instructed and then take up his complaint with the appropriate person in authority. Bobby Mills was a quality manager at PPC in 1990. He and Ms. Williams were of equal rank, but supervised different sections. Both reported to Mindy Hill, the general manager. When Ms. Williams was absent from work, Mr. Mills would supervise her section as well as his own. When Ms. Williams was present on the job, Ms. Rouse, as line leader, would relay employee requests for permission to go home early to Ms. Williams for a final decision. Ms. Rouse would then relay Ms. Williams' decision to the employees requesting to leave early. On May 2, 1990, Ms. Williams was absent from work, and Mr. Mills filled in for her. Work in the Lorlin testing area was slow on that day, although work was expected to come later in the day. Ms. Boatwright had asked her line leader, Ms. Rouse, for permission to go home at lunch because of the lack of work. Ms. Rouse, believing that she had the authority to grant the permission in Ms. Williams absence, told Ms. Boatwright that she could go home early. Mr. Mills, observing that Ms. Boatwright, Mr. Matthey, and Ms. Rouse were not working, inquired of them why they were not working. Ms. Boatwright told Mr. Mills that she was going to go home at lunch. Mr. Mills informed the group that they could work in another area or go home then. Ms. Rouse told him she could not afford to go home early and she went to another area to work. Mr. Mills left and came back a few minutes later and told both Mr. Matthey and Ms. Boatwright to go to the back to work. Both indicated that they were going to go home early, which they did. To Mr. Mills, their leaving constituted a refusal to follow orders and was therefore insubordination. Although Mr. Mills had the authority to fire employees under his supervision without consulting the general manager, he did discuss the incident with Mindy Hill because Ms. Boatwright and Mr. Matthey were in Ms. Williams' section. He recommended dismissal; however, he was unaware at that time that Ms. Boatwright had filed a discrimination complaint. His recommendation for dismissal of Ms. Boatwright was not racially motivated. Mindy Hill made the final decision to dismiss Mr. Matthey and Ms. Boatwright for insubordination for leaving the workplace when requested to work. No evidence was presented to show that either race or retaliation played a part in her decision to terminate Ms. Boatwright and Mr. Matthey. Mr. Matthey learned of his termination when he spoke to Mr. Mills by telephone on the same day. Ms. Boatwright was verbally advised of her termination when she returned to work the next day. On February 26, 1991, Ms. Boatwright amended her discrimination charge to include her termination from employment with PPC. She alleged that she was discharged in retaliation for having filed a charge of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended. The statistics collected by PPC for its affirmative action plans show that for the year October 1, 1989 through September 1990, thirty-four Caucasians and eighteen blacks were terminated. For the previous year, thirty-two Caucasians and twenty-four blacks were terminated. On October 8, 1992, the Equal Employment Opportunity Commission (EEOC) issued a Determination of No Cause relating to Ms. Boatwright's charges. The Florida Commission on Human Relations conducted a substantial weight review and issued a Redetermination: No Cause on April 8, 1993, adopting the October 8, 1992 determination of the EEOC. Ms. Boatwright filed a Petition for Relief on May 6, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has failed to prove that Respondent committed an unlawful employment practice against Petitioner. DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2647 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1 - Accepted in substance. Paragraphs 2 and 3 - Rejected as not supported by the weight of the evidence. Paragraph 4 - First, third, and fifth sentences accepted in substance. Second and fourth sentences rejected as not supported by the evidence. Paragraphs 5 and 6 - Accepted. Paragraph 7 - First and second sentences accepted in substance. Third sentence rejected as not supported by the evidence to the extent that there was no evidence to show that Ms. Rouse on prior occasions had given employees permission to leave early without getting approval from her superiors. Paragraph 8 - First, third and fourth sentences are accepted in substance. The second sentence is accepted to the extent that Petitioner did leave early but rejected to the extent that she left immediately after the conversation with Mr. Mills at which Ms. Rouse was present. Paragraph 9 - Accepted. Paragraph 10 - Rejected as subordinate to the facts actually found in this recommended order. Paragraphs 11 and 12 - Rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraph 1 - Accepted. Paragraph 2 - Accepted except as to the date of hire. The evidence shows Ms. Boatwright began her employment on 2-8-74. Paragraphs 3 and 4 - Accepted in substance. Paragraph 5 - Rejected as unnecessary detail. Paragraph 6 - Accepted. Paragraphs 7 and 8 - Rejected as unnecessary detail. Paragraph 9 - Accepted. Paragraph 10 - Rejected as unnecessary detail. Paragraphs 11, 12, and 13 - Accepted in substance. Paragraph 14 - Accepted in substance. Paragraph 15 - Accepted in substance. Paragraph 16 - Accepted in substance. Paragraph 17 -Accepted. Paragraphs 18-22 - Accepted in substance. Paragraph 23 - The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 24 - Accepted. Paragraph 25 - Accepted in substance. Paragraph 26 - The last sentence is rejected as unnecessary detail. The remainder is accepted in substance. Paragraphs 27, and 28 - Accepted in substance. Paragraph 29 - To the extent that the first sentence infers that Revision J was in operation prior to 10-3-89, it is rejected as not supported by the evidence. Storz testified Revision J instituted the logbook requirement and was not signed off until 10-3-89. The remainder of the paragraph is accepted in substance. Paragraph 30 - Accepted in substance. Paragraph 31 - Rejected as unnecessary detail. Paragraphs 32, 33, 34, 35 - Accepted in substance. Paragraph 36 - Rejected as unnecessary detail. Paragraphs 37, 38, 39 and 40 - Accepted in substance. Paragraph 41 - The first sentence is rejected to the extent that it infers that Revision J was in effect prior to 10-3-89. The remainder of the sentence is accepted in substance. Paragraph 42 - Accepted in substance. Paragraph 43 - Accepted. Paragraphs 44, 45, 46 and 47 - Accepted in substance. Paragraph 48 - The third sentence is rejected as subordinate and unnecessary detail. The remainder is accepted in substance. Paragraphs 49, 50, 51. and 52 - Accepted in substance. Paragraph 53 - Accepted Paragraph 54 - Accepted in substance. Paragraphs 55, 56, and 57 - Rejected as subordinate. Paragraph 58 - Accepted in substance. Paragraph 59 - The last sentence is rejected as not supported by the evidence to the extent that the term "personnel" included. Ms. Rouse, Ms. Boatwright, and Mr. Matthey. The greater weight of the evidence shows that those three persons did not understand that Mr. Mills was their supervisor. The remainder of the paragraph is accepted in substance. Paragraph 60 - Accepted. Paragraphs 61, 62, 63, 64, and 65 - Accepted in substance. Paragraph 66 - The last sentence is rejected to the extent that Mr. Mills instructed Ms. Rouse to go to the back upon his return. Ms. Rouse left before Mr. Mills returned. The remainder is accepted in substance. Paragraph 67 - Accepted in substance to the extent that Ms. Rouse complied with his instructions prior to Mr. Mills leaving the testing area to inquire if there was work in another area. Paragraphs 68 and 69 - Accepted in substance. Paragraph 70 - The first and fourth sentences are accepted in substance. The remainder of the paragraph is rejected as unnecessary detail. Paragraphs 71 and 72 - Accepted in substance. Paragraph 73 - The last sentence is rejected as not supported by the evidence to the extent that Mr. Mills clearly revoked Ms. Rouse's permission. It is obvious that it was not clear to Ms. Boatwright, Ms. Rouse, and Mr. Matthey. The remainder of the paragraph is accepted in substance. Paragraph 74 - Accepted in substance. Paragraph 75 - Rejected as subordinate and unnecessary detail. Paragraph 76 - Accepted in substance. Paragraphs 77 and 78 - Rejected as unnecessary detail. Paragraph 79 - The first sentence is accepted in substance and the remainder of the paragraph is rejected as unnecessary detail. Paragraph 80 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 81 - Accepted. Paragraph 82 - Rejected as unnecessary detail. Paragraph 83 - Accepted. Paragraphs 84 and 85 - Rejected as unnecessary detail. Paragraphs 86 and 87 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 88 - Accepted in substance. Paragraph 89 - Accepted. Paragraph 90 - Accepted in substance. Paragraph 91 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 92 - Accepted in substance. Paragraphs 93 and 94 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 95 - Accepted. Paragraph 96 - Accepted in substance. Paragraph 97 - Accepted. Paragraph 98 - Rejected as constituting a conclusion of law rather than a finding of fact COPIES FURNISHED: Ms. Sandra Boatwright 390 West 33rd Street Riviera Beach, Florida 33404-33036 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Suite 900 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue to be determined is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against him on the basis of disability and/or age.
Findings Of Fact Petitioner worked for Respondent as a child protective investigator (CPI) in Key West, Florida, for just over eight months, from June 30, 2014, until March 2, 2015. Petitioner generally described his background prior to working for Respondent as including 30 years of work experience as a police officer, parole and probation officer, and insurance investigator. Petitioner began working for Respondent in a temporary part-time OPS position on June 30, 2014. Petitioner was required to complete a 10- to 12-week CPI training course and pass a test to attain provisional CPI certification in order to become eligible for a career service CPI position on a probationary basis. The probationary period for CPIs is one year from the effective date of employment in the career service position. The CPI training program for the DCF region that includes Key West was held on three days each week in Miami. Petitioner began the training program sometime in July 2014. Petitioner commuted from Key West to Miami for the training sessions, and spent the other two days each week working in his OPS position in Key West, shadowing and observing CPIs. During this time, he was not assigned cases or allowed to take responsibility in investigations, but may have performed minor tasks, such as making phone calls to assist the CPIs. CPI Essential Job Functions The official state of Florida position description for the CPI position provides the following overview of the job: “This is professional work protecting children, working with families and conducting investigations of alleged abused, abandoned, neglected or exploited children.” (R. Exh. 2). The job description sets forth a long list of CPI duties and responsibilities necessary to carry out that overall function, including the following (among others): Collects information through interviews with the children, parents, relatives, neighbors, and other parties associated with the case; Engages families, identifies needs and determines the level of intervention needed to include voluntary services or court ordered dependency services; Conducts initial/ongoing child Present and Impending Danger assessments; Develops with the family a signed Present Danger Plan and a signed safety plan for any identified threats and interventions; Arranges emergency placement for any child that cannot safely remain at home; Prepares appropriate reports/documentation in coordination with Children’s Legal Services and provides testimony in court; Maintains thorough documentation in client records/appropriate information system(s) and maintains organized client files. The official job description also identifies chapter 39, Florida Statutes, as the statutory chapter that establishes or defines the work performed in the CPI position. Statutes in this chapter, such as section 39.301, elaborate on the requirements for conducting child protective investigations when allegations of child abuse, neglect, abandonment, or exploitation are made to the central abuse hotline and referred to DCF. The statutes governing child protective investigations, along with DCF implementing rules and internal operating procedures, provide for strict time requirements for promptly initiating investigations when new cases are referred from the central abuse hotline, identifying and interviewing witnesses, assessing danger, developing plans to address dangerous situations and to ensure child safety, monitoring plans, marshalling community resources, and ultimately, completing and closing the investigation within an outside limit of 60 days in all cases. Only two exceptions are provided in the statute to the strict 60-day case closure deadline: when there is an active concurrent criminal investigation that would be compromised; or in child death cases when the medical examiner’s final report is necessary but not received within 60 days. See § 39.301(16), Fla. Stat. In short, as well described by Respondent’s witnesses, from Petitioner’s supervisor on up the chain of command through the DCF deputy regional managing director for Miami-Dade and Monroe Counties, timely and thorough performance and documentation of all of the critical steps of child protective investigations described above are essential to ensure the safety and well-being of Florida’s children. A misstep, a delayed step, or a step taken but not thoroughly documented could result in harm (or worse) perpetrated on a vulnerable child, which might otherwise have been prevented. The CPI job is not an easy one; it is a difficult, demanding job with no leeway for sliding on deadlines or cutting corners on job performance. The official CPI job description specifies that on-call duty is required. New case reports from the central abuse registry that require child protective investigations can arise at any time of the day or night. Depending on the nature of the case, the assigned CPI will be required to make first contact with the child either immediately or, at the outside, within 24 hours. Since the DCF offices are only open eight hours per day, five days per week, the rest of the hours--nights and weekends-- have to be covered by at least one on-call investigator and one on-call supervisor, so that cases can be opened and the investigation process started. On-call CPI duty is rotated; on average, a CPI is expected to take on-call duty one night of the week and one weekend per month. Another essential function of the CPI position is to become proficient using the Florida Safe Families Network (FSFN) computer system, which is a central system used by the central abuse registry to submit new case reports to the appropriate DCF office, and by DCF to document every aspect of an investigation, from inception to closure. Use of the FSFN system is specifically incorporated in the requirements for child protective investigations set forth in Florida Administrative Code Chapter 65C-29. See, e.g., Fla. Admin. Code R. 65C- 29.003(1)(a) (requiring documentation in FSFN of a CPI’s rationale for downgrading an “immediate response” case to a “24- hour response” case). Training in the use of the FSFN system begins in the 10- to 12-week CPI training course required to obtain provisional CPI certification. Thereafter, FSFN proficiency is gained through on-the-job use. New CPIs may initially need some assistance from more seasoned CPIs in their offices and/or from their supervisor until they learn all aspects of the system, but the FSFN system is not considered difficult to master and it should not take long for new CPIs to learn to the point of not requiring assistance. Another essential job requirement for the CPI position, according to the official position description, is a valid driver’s license. In conducting investigations, CPIs must be able to quickly and independently navigate from the DCF office to the homes of the subjects of an abuse report, to other homes and businesses to interview witnesses and conduct inspections, to schools where children to be interviewed might be found, to court when necessary to offer testimony, and other places. Petitioner’s Undisclosed Stroke Episode According to Petitioner, on July 31, 2014, while Petitioner was in Miami in the early weeks of his CPI training, he woke up feeling strange and stiff. However, he was able to go to his training course. When he arrived, a classmate allegedly asked Petitioner if he was feeling okay. Petitioner remained in class for the day’s training session. After class, the same classmate allegedly said that Petitioner should go to the hospital to get checked out. Petitioner said that after some resistance, he agreed and allowed the classmate to take him to an emergency room. The classmate did not testify at hearing. Petitioner testified that his classmate waited with him at the emergency room for a short time, then left. Petitioner remained alone at the emergency room for about six and one-half hours without being seen by a physician. At that point, Petitioner was feeling better and was unwilling to wait any longer, so he had his son take him to his brother’s home where Petitioner stayed when attending the Miami training sessions. The next day (Friday, August 1, 2014), Petitioner still felt stiff, but well enough to attend the day’s training session. After the training, he drove from Miami to Port Orange, where his wife lived. (He had only recently relocated to Key West to begin his new OPS job, and his wife had not yet joined him there.) Petitioner said that his wife wanted to take him to the hospital to be checked out upon his arrival Friday evening, because she did not think he looked good (after a day’s training followed by a long drive). Petitioner “dismissed her concerns” (Tr. 40), and stayed home that night. The next day--two full days after Petitioner woke up feeling strange and stiff--his wife repeated her request that he get checked, and this time he agreed. Petitioner went to an emergency room and was subsequently admitted to the hospital from Saturday afternoon to Monday afternoon for testing. Petitioner said that he was informed by the doctor that the test results indicated that he had had two strokes, one affecting each frontal lobe of his brain. No documentation of this hospital stay, the test results, or the diagnosis was offered in evidence. From the hospital, Petitioner called his direct supervisor, Karen Gibson, the child protective investigator supervisor (CPIS) for the Key West office. Petitioner told her that he was in the hospital because of diabetes, explaining that he had not been following his diet and had let himself get out of control. He did not ask for any accommodation for the diabetic condition (indeed, it is unknown whether Petitioner actually has or had diabetes, as no evidence was offered on that subject). Instead, Petitioner assured his supervisor he would be able to return to work and training right away. According to Petitioner, it was Ms. Gibson who told him to take some time off. She said that he should not return to Key West Monday or Tuesday, but rather, he should go straight to Miami on Wednesday to resume training. He did as she suggested.2/ Petitioner admits that he did not tell Ms. Gibson in the beginning of August 2014, or for many months thereafter, that he had been diagnosed with having had two strokes. Petitioner did not deny Ms. Gibson’s testimony that he had told her he was in the hospital due to diabetes. Petitioner acknowledges that it was his choice to not disclose the truth about the hospital stay. It was not until Petitioner had been counseled repeatedly by Ms. Gibson for not properly performing his CPI duties, and after he had been told that if he could not perform his duties he would not be able to keep the job, that Petitioner disclosed that he had had a stroke. No medical information was provided to Ms. Gibson, nor was any offered at hearing, to illuminate Petitioner’s condition in August 2014 or at any time thereafter while he was employed by Respondent. It is unknown whether Petitioner’s description of what he was told by a doctor in August 2014 is accurate.3/ Petitioner failed to prove, other than in the most general anecdotal way, the nature or extent of his condition in August 2014 or thereafter while employed by Respondent. It is unknown whether the strokes he said he was told about were considered minor, severe, or somewhere in between; what sort of medical professional(s) Petitioner saw and how frequently; what medication was prescribed for Petitioner for what purpose; what specific symptoms were attributed by such medical professional(s) to his July 31, 2014, episode; what sort of treatment or therapy may have been recommended by any such professional(s); and how the medical professional(s) have described Petitioner’s prognosis then or at any time since then.4/ What is known about Petitioner’s condition following the undisclosed stroke incident is that after Petitioner took the extra one or two days off as Ms. Gibson suggested, Petitioner was able to return to a full schedule of training in Miami, plus working two days per week in Key West, for the rest of August and September 2014. There is no evidence that Petitioner expressed any concerns about his physical or mental health, or experienced any health problems that interfered with his ability to work, to participate and learn in training sessions, and to frequently drive back and forth between Miami and Key West. Petitioner successfully completed his CPI training on September 26, 2014, and he took and passed the test to obtain provisional CPI certification. With the training and provisional CPI certification, Petitioner qualified for a career service CPI position with probationary status. He was offered that position and accepted. He was transferred into the position on October 3, 2014, marking the beginning of his one-year probation. Petitioner’s Job Performance Petitioner was eased into his new CPI position with a lot of direct supervision by CPIS Gibson and assistance from the other CPIs working in the Key West office. Although Petitioner was eligible to receive new case assignments upon obtaining his provisional CPI certification, as a matter of course with all new CPIs, Petitioner’s supervisor would assign fewer cases at first, direct the more difficult cases to other CPIs for at least the first month or two, and staff cases so that new CPIs would be working on their cases along with other CPIs to the extent possible. She did this for Petitioner, so that at first, he had a lower volume of easier cases on which other CPIs assisted him.5/ He was also not immediately put into the on-call rotation, taking his first on- call assignment on a weekend late in December 2014. Petitioner’s performance on individual cases was documented in FSFN entries in the individual case files. At defined stages of an investigation, the progress would be reviewed by the CPIS, who would discuss the case with the CPI and issue or revise supervisory directives to identify tasks that the CPI needed to accomplish in the investigation. These benchmark points included: initial intake assessment performed by the CPI within 48 hours of case assignment and submitted to the supervisor for the initial supervisory review; case update submitted by the CPI after 30 days for the supervisory 30-day review; and investigation completed by the CPI and submitted to the supervisor for closure after 45 days. These supervisory reviews were documented in the FSFN case file by the CPIS. As an example in evidence, an excerpt of the FSFN chronological notes report for one investigation assigned to Petitioner contains a summary entered by Petitioner’s supervisor on October 31, 2014, documenting the initial supervisory review. Supervisory directives to Petitioner were listed as items that “CPI needs to” do, including requesting law enforcement calls to the home and requesting medical records from the hospital where the 14-year-old child had been admitted under the Baker Act. In a follow-up note on review of the investigation submitted for 45-day closure, Ms. Gibson set forth a list of items that Petitioner still needed to do, including documenting the law enforcement calls to the home that he was to have requested as a result of the initial supervisory review. In another follow-up note on December 24, 2014, Ms. Gibson reported that she had to request the hospital records for the 14-year-old’s Baker Act stay, because “CPI Rosado had previously requested from incorrect hospital.” (R. Exh. 1 at 4). FSFN notes from other individual case files reflect other issues of concern with Petitioner’s performance as a CPI. In one investigation of a three-year old child with a burn mark, the initial supervisory review notes entered by Ms. Gibson on December 22, 2014, reported that the mother has two children, ages three and one, by two fathers, and that she recently separated from the youngest child’s father and began living with her current paramour. Supervisory directives to Petitioner included: requesting medical collateral documentation; interviewing the boyfriend separate from the mother; interviewing both fathers and, if the children go to their homes, visiting the fathers’ homes; and attempting a collateral interview with a maternal relative. On January 23, 2015, the 30-day supervisory review notes entered by Ms. Gibson reported that Petitioner still needed to interview both fathers, document observations of both fathers’ homes, request medical collateral documentation for the children and upload the records to FSFN, and attempt a collateral interview with a maternal relative. Pointing out that there was not much time to accomplish these directives (many of which remained undone for over 30 days), the entry noted that the investigation was due to be submitted for closure on February 6, 2015. On February 1, 2015, Ms. Gibson completed an entry reporting that Petitioner submitted the investigation for 45-day closure, but the investigation was incomplete and recalled, because “CPI has not completed prior supervisory directives in first and 30-day reviews.” (R. Exh. 1 at 18). Several other examples were shown in the FSFN notes of investigations submitted by Petitioner for closure, but which were incomplete and recalled. Petitioner admitted what is documented in the records of his investigations: that he had problems meeting the time frames imposed for completing the investigations, and that he had problems completing and documenting all of the supervisory directives. FSFN notes of other investigations show that Petitioner did not thoroughly document the investigative steps he did complete. Instead, in supervisory reviews, Petitioner frequently had to be asked to upload documents he had collected, to document that he accomplished certain supervisory directives, to clarify his interview summaries, and to clarify whether he had asked certain questions germane to the specific case. A particular problem in this regard was Petitioner’s inability to hone in on the critical information needed to assess the child’s safety, when conducting and summarizing interviews and providing back-up documentation in the FSFN case files. As Petitioner’s supervisor credibly described the problem, Petitioner would amass a lot of information in the course of his investigations, but not necessarily the information needed to assess the child’s safety in light of the allegations to be investigated. One FSFN note of particular concern documented a 30-day supervisory review of an investigation assigned to Petitioner. The intake was received on January 4, 2015, for investigation of a child’s safety. Both the mother and stepfather were arrested for domestic violence. Petitioner had developed a safety plan, meaning that he determined that the plan was necessary to ensure the child’s safety. The safety plan, signed by the mother only, indicated that the stepfather would not return home. Petitioner discussed the safety plan with the stepfather, but did not ask him to sign it. Of greatest concern was the note that as of the 30-day review, Petitioner had not worked on the case since the initial supervisory review, had not monitored the safety plan, could not report as to the family’s circumstances or safety plan compliance, and had not been back to the home. Ms. Gibson noted that she counseled Petitioner regarding the importance of monitoring safety plans. She added that Petitioner still needed to complete the initial supervisory directives issued in January. Petitioner’s supervisor testified credibly that the foregoing example was symptomatic of Petitioner’s overall inability to effectively manage his cases. He did not demonstrate good choices in prioritizing his tasks within a case or among his cases. Examples such as the foregoing one in which a case that required a safety plan to ensure the child’s safety was left dormant by Petitioner for 30 days demonstrate that it is a matter of sheer fortuity that there were not dramatic, tragic consequences from Petitioner’s failure to properly perform his duties as a CPI. At hearing, Petitioner acknowledged his performance problems. He was well aware that when he was a CPI, he was having problems meeting case deadlines, completing the necessary tasks for each investigation by those case deadlines, and completing the supervisory directives in his cases. He was well aware that cases he submitted for closure were being recalled to him because they were not ready for closure. Indeed, all of these performance problems were repeatedly called to Petitioner’s attention in supervisory case reviews, as documented in the FSFN case files. In addition to these investigation-specific problems of not meeting the time frames necessary to complete investigations for timely closure, not completing specific supervisory directives, not documenting what was done, not uploading documentation collected, and not clearly summarizing interviews and information, Petitioner had trouble learning how to use FSFN. Some learning-curve time is to be expected to master all of the mechanics of logging in, checking for new cases referred by the central abuse hotline, creating a new case file, entering interview summaries, reviewing existing case files for information entered in supervisory reviews or by other CPIs working on the investigation, uploading documents such as medical records and signed safety plans, and similar tasks. However, Petitioner’s supervisor credibly testified that after allowing for reasonable learning-curve time, Petitioner was still not catching on and was not showing any signs of progress. Instead, he required constant help from her and from other CPIs to perform even the most basic steps. He repeated the same requests for help and received the same instructions multiple times. As another CPI who worked with Petitioner in the Key West office described Petitioner’s difficulties with basic, everyday FSFN tasks, “He would ask for assistance and you would explain it to him and then a short time later or the next day he would ask the same question . . . as if he couldn’t remember to--how it was done.” (Tr. 327). Petitioner admitted that he had to be given the same instructions over and over by his supervisors because he could not remember the instructions previously given to him. He admitted that he asked the same questions and asked for assistance with the same tasks because he had problems remembering that he had been given those instructions before. As an example, Petitioner was assigned to on-call duty on the weekend of February 28, 2015. Although it was Petitioner’s third on-call duty experience, and although Petitioner had been working in his career service CPI position for five months, he could not remember how to check the FSFN new case screen for referrals from the central abuse registry. He had to ask for help from another on-call CPI, who walked him through the process to check the new case screen, accept the new case that was waiting, and open a new investigation file. The other worker had to give Petitioner advice to review the new case with the on-call supervisor. Petitioner went in to see Ms. Gibson, and even though he had just been walked through the process, Petitioner had to ask Ms. Gibson to show him how to access the new case file. He told her he was embarrassed to have to ask again. At hearing, Petitioner admitted that he had to repeatedly ask for assistance when using FSFN because he had trouble remembering how to use the system. Petitioner’s Disclosure Even before the on-call problem on February 28, 2015, Petitioner’s supervisor had discussions with her supervisor, Program Administrator Amy Baldree, regarding dissatisfaction with Petitioner’s performance, despite the repeated counseling and directives evident from the FSFN case notes discussed above. Ms. Gibson candidly acknowledged that “at this point [mid-February 2015] we were trying to move towards termination with Mr. Rosado.” (Tr. 131). She was told that she needed to document her counseling of Petitioner. Although there was documentation of counseling in the FSFN notes for individual cases, Ms. Gibson admitted that she had not prepared any probationary progress reviews for Petitioner. According to Respondent’s employee relations coordinator, ideally supervisors complete probationary progress reviews monthly for CPIs during their one year on probation. Ms. Gibson proceeded to complete probationary progress review forms for Petitioner for the months of December 2014, January 2015, and February 2015. The completed evaluation forms were all presented to Petitioner and signed by Ms. Gibson and Petitioner on the same day, February 23, 2015.6/ Although it would have been better practice for each of these progress reviews to have been prepared and presented to Petitioner close to the time period addressed in each review, Ms. Gibson credibly explained that nothing written in the three months of progress reviews was new to Petitioner. Instead, the review forms contain samplings of the same types of performance problems that she had been discussing repeatedly with Petitioner in supervisory reviews of individual cases assigned to him. Her explanation is supported by the FSFN individual case notes.7/ According to Petitioner, he responded to the performance reviews by disclosing to Ms. Gibson on February 23, 2015, one week before he was terminated, that he had suffered two strokes, as if to explain his performance issues. He claims that Ms. Gibson’s comment was that he just needed to work faster if he wanted to keep his job. Ms. Gibson acknowledged that at some point close in time to the February 23, 2015, performance review discussion, and shortly before Petitioner was terminated, Petitioner disclosed to her that he had had a stroke (one, not two). However, she recalled the conversation differently. According to Ms. Gibson, she and Petitioner were having one of their periodic discussions about performance problems, such as missing deadlines or failing to complete supervisory directives, and he acknowledged that he was having difficulty remembering things. Her response was that he could not stay in the CPI position unless he could perform his duties and remember his directives and responsibilities. It was at that point that he said that he guessed he had to tell her that he had a stroke. Ms. Baldree was present when Ms. Gibson presented the performance reviews to Petitioner on February 23, 2015. She testified that Petitioner asked her whether Ms. Gibson had told her that he had had a stroke recently. She said yes, and Petitioner responded that he just wanted to make sure she was aware. She asked him how he was doing and he said, “Fine. I’m seeing a doctor.” That was the end of the conversation. Regardless of how or exactly when Petitioner finally disclosed to his supervisors the fact that he had had a stroke or two strokes (not so recently, but rather, nearly seven months before his disclosure), the evidence establishes that Petitioner was unable to perform the essential functions of his job. Petitioner admitted as much. Petitioner acknowledges that he never requested a specific accommodation to enable him to perform his job. Petitioner seemed to suggest that if only he had been told to take a leave of absence, he could have undergone rehabilitation and gotten better. However, he never asked for days off, much less any extended leave of absence, so that he could undergo rehabilitation. Petitioner testified that while he was employed with Respondent, he had an insurance policy that he had obtained through the state. Although the policy was not offered in evidence, it was described in terms that sounded like short-term disability insurance (which would have been made available for Petitioner to purchase, but was not a benefit actually provided by DCF). Petitioner contends that he should have been allowed to take time off using that insurance policy to receive income while not working. However, Petitioner admitted that he never asked to take time off. Moreover, he never submitted a claim under the short-term disability policy, because he said he did not know he could (and whether he could have or not is unknown, as there is no record evidence to answer that question). Petitioner testified that he never asked for any accommodation because he was afraid to ask for an accommodation while a probationary employee. Alternatively, and somewhat inconsistently, he also testified that he did not ask for a specific accommodation because he thought his supervisors would know what he needed and would refer him to the right place for assistance. At hearing, Petitioner was unable to identify any specific accommodation that would have enabled him to perform the essential functions of his CPI position. The best he could offer was that he should have been allowed to go slower, or should have been assigned a full-time mentor to work with him every day to slowly explain to him how to do his job, since he believes his main performance problem was that he could not complete investigations quickly enough. However, the fast time lines for moving forward on investigations, with the interim supervisory reviews and benchmarks, are essential to the job because of the statutorily-mandated investigation closure deadline. Petitioner’s Termination Ms. Gibson and Ms. Baldree discussed their concerns about Petitioner’s performance with the DCF employee relations coordinator, Ranjana Bhandari, and they offered their view that Petitioner’s employment should be terminated. Ms. Bhandari reviewed the three probationary progress reviews, and asked for additional documentation. Ms. Gibson and Ms. Baldree prepared a memorandum providing more detail regarding the history of performance problems since Petitioner was transferred into the career service CPI position, the additional instruction and oversight provided to Petitioner because of his inability to perform his duties without constant assistance, the lack of improvement, and the constant counseling that had been provided to him to impress upon him the importance of meeting the deadlines for investigations and carrying out supervisory directives. Additional specific examples of performance problems were provided in the memo. One such example was a recent investigation involving three children, with allegations of sexual abuse. The case was initially assigned to Petitioner on January 30, 2015. Ms. Gibson asked another CPI, Mr. Quinones, to go with Petitioner to interview the children, and they did so on a Friday at the children’s school. The next Monday, Ms. Gibson asked Petitioner about the case, which she identified by name. Petitioner did not recognize the name. Ms. Gibson added details: “You know--the sexual abuse case with the three African American children you interviewed at [name of school] on Friday?” Petitioner responded with a blank look; he had no recollection of the case. Ms. Gibson reassigned the case to another CPI. Another more recent example was provided, in which Petitioner was assigned a new case on February 18, 2015, and he told Ms. Gibson he planned to see the children at school the next day. The next day, after the 24-hour response deadline had passed, Ms. Gibson asked him about the case, and he responded that he had not yet seen the children because he had gone out on another investigation that Ms. Gibson determined was not as high a priority as meeting the 24-hour deadline in the new case. Not only was he late seeing the children for the first time in the new case, but he was also late finishing the child safety assessment for those same children. Bringing the performance report completely current, among other examples detailed in the memo, Ms. Gibson and Ms. Baldree recounted Petitioner’s continued FSFN failures that hampered his performance of his on-call duty over the weekend of February 28, 2015. Ms. Bhandari reviewed the memorandum and determined that the documentation was sufficient and supported the recommendation that Petitioner be terminated because of his demonstrated inability to perform the duties of a CPI. Ms. Bhandari did not know about Petitioner’s recent disclosure of his stroke episode seven months earlier. Ms. Bhandari did not know Petitioner’s age. Rosa Baez also reviewed the documentation supporting the proposed termination of Petitioner’s employment. At the time, Ms. Baez was a family and community services director who oversaw DCF programs, including child protective investigations. Her role was to review the reasons why the program administrator and the employee’s supervisor were recommending termination, and unless she disagreed with the recommendation, she would let the process go forward. After reviewing the documentation regarding Petitioner’s performance provided by Ms. Bhandari, she did not disagree with the proposed termination, since child safety was an issue. Ms. Baez did not know about Petitioner’s recent disclosure of a stroke episode seven months earlier, nor did she know Petitioner’s age; there was nothing in the memo or progress reviews regarding either subject. The documentation and recommendations were provided to Gilda Ferradaz, the deputy regional managing director, who made decisions on proposed dismissals of probationary employees. She reviewed the material and made the decision to terminate Petitioner’s employment, signing the letter informing Petitioner of that decision. She explained the basis for her decision: [T]his was a probationary employee in a child protective investigation role. This work is very critical work; it is very detail- oriented. We have to make sure that the staff we have working have--are fully grasping all of the responsibilities of this position, making sure all of the assessments are fully done, all of the appropriate people are interviewed, and that decisions are made based on all of the information available to make sure that children aren’t at risk. And it seemed that this employee was not able to grasp the scope of responsibility for this critical position. (Tr. 305). Ms. Gibson and Ms. Baldree met with Petitioner on March 2, 2015, to deliver the termination letter signed by Ms. Ferradaz. Petitioner signed the letter to acknowledge that he received it. Petitioner testified that when he was presented with the termination letter on March 2, 2015, he asked Ms. Gibson and Ms. Baldree whether they could extend the same courtesy that they provided to former CPI Jeffrey Qualls, by demoting him to another position instead of terminating him. Contrary to Petitioner’s testimony, both Ms. Gibson and Ms. Baldree denied that Petitioner made any such request. There is nothing in writing to substantiate Petitioner’s claim that he asked to be treated the same as Mr. Qualls.8/ Even if Petitioner had requested a demotion, Petitioner offered no proof that there was a vacant position available for him at the time. Instead, Petitioner admitted that he does not know if there was any position available at the time to which he could have been demoted. The only evidence on the subject was Ms. Baldree’s testimony that, in fact, there was no open position at the time to which Petitioner could have been demoted. As program administrator, she would be in a position to know or to research that question when Petitioner’s claim was made known during this proceeding (such as in his deposition). Even if Petitioner had proven that there was an available lower-level position at the time of his termination, Petitioner’s own testimony raises considerable doubt as to whether Petitioner was capable of working at all in any kind of DCF position had one been available. Petitioner was asked about the efforts he made to find another job after he was fired. Petitioner responded: “I was not able to make--have any efforts to look for other employment because of my mental health status. . . . I didn’t feel I was able to perform a job with the residual effects from the two strokes I was having.” (Tr. 64). Petitioner added that although he was not looking for work, during the spring of 2015 after he moved to Tarpon Springs, he agreed to work part-time at Old McMicky’s Farm, a children’s farm in Odessa. His job was to lead groups of children on a walking tour of six or seven stations. Multiple tours would be conducted at the same time, with other groups led by other employees. To evenly distribute the tour groups among the stations, each tour leader was required to lead his or her group through the stations in a certain order, and the assigned order would change depending on the number of tour groups. Petitioner was terminated from the job after a few weeks, because he could not remember the order of the stations to which he was supposed to lead his group, and he would sometimes skip a station or two. Petitioner explained that the reason he took the job at Old McMicky’s Farm was: “I wanted to get my feet wet and see if I could do a job. It turned out that even though [the job involved] most[ly] menial tasks, I was failing at it.” (Tr. 90). Petitioner has not attempted work since then. For purposes of pursuing his charge of discrimination on the basis of a disability, Petitioner was required to submit to FCHR either medical records to prove a disability or a completed medical certification form. After receiving an extension of the deadline, Petitioner submitted a medical certification form completed on July 5, 2016, by a doctor identifying himself or herself as having a specialty in the area of neurology. The doctor checked the “yes” box in answer to the question asking whether he/she is the complainant’s treating medical professional with knowledge of the complainant’s medical condition and history. No details were provided. Also answered yes was the question asking whether the complainant has a physical or mental impairment that substantially limits one or more major life activities. On the following pages, the doctor identified those life activities as seeing (sufficiently to perform daily functions/general hygiene), learning (“has a hard time learning new things, memory affects this”), performing manual tasks (“drops things with right hand”), speaking (“when tired has slurred speech”), and walking (“loses balance easily, stumbles, falls”). (R. Exh. 7). This form was accepted by FCHR. Although for purposes of this hearing, the completed form is hearsay, it does lend some credence to the notion that Petitioner has a disabling condition (at least as of July 2016). Petitioner said that over time, he has gotten worse. He testified that he is hardly able to drive now, and his memory is worse--he is not able to remember his street address. Claimed Damages Petitioner did not prove the existence or amount of damages caused by the claimed unlawful employment practice. Petitioner testified that he was seeking one year’s salary and benefits as back pay. However, Petitioner’s own testimony establishes that he was unable to perform the CPI duties, or any job duties, in the year after he was terminated. If Petitioner had been able to work but simply chose not to, then he would have failed to mitigate damages by not looking for another job--but he said that he was completely unable to work. Petitioner’s inability to work in even a less demanding job with menial duties is demonstrated by his failed experience working at Old McMicky’s Farm only a month or so after he was terminated. Petitioner cannot claim compensatory damages for income lost by reason of having been terminated when he admits that he was unable to do any kind of work. Petitioner alluded to other damages, such as moving expenses, but he offered no evidence to prove what his actual expenses were in any of these areas of claimed loss. Ultimate Facts Accepting Petitioner’s marginal showing that he was, at the relevant time, a person with a disability, Petitioner failed to prove that he was qualified to perform the essential functions of the CPI position, with or without accommodation. Instead, the evidence established that Petitioner was unable to perform the essential functions of a CPI, with or without accommodation. Petitioner never requested a specific accommodation to enable him to perform his duties as a CPI. Petitioner failed to prove that there was any reasonable accommodation he could have requested that would have enabled him to perform the essential functions of his job. Respondent offered a legitimate non-discriminatory reason for terminating Petitioner’s employment. Beyond just articulating a reason, Respondent proved that Petitioner’s employment was terminated based on well-documented performance problems in virtually all essential areas of the CPI position, and not as a pretext for unlawful discrimination. Petitioner failed to prove that Respondent intentionally discriminated against Petitioner because of his disability. Petitioner did not prove that there was any similarly situated person who was not disabled and who was treated more favorably than Petitioner. Petitioner failed to prove that Respondent intentionally discriminated against Petitioner because of his age. Indeed, the record is devoid of any evidence, circumstantial or otherwise, directed to Petitioner’s charge of age discrimination. Petitioner did not prove that there was any similarly situated person of a different age than Petitioner and who was treated more favorably than Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Petitioner, Luis Rosado, III, be DISMISSED. DONE AND ENTERED this 15th day of March, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 15th day of March, 2017.
The Issue Whether Respondent, American Support, discriminated against Petitioner, Linda Dodge, in violation of the Florida Civil Rights Act of 1992 (the Act) sections 760.01–760.11 and 509.092, Florida Statutes, based upon her sex or in retaliation for participation in a protected activity.1/
Findings Of Fact American Support is a third-party telemarketing contractor for providers of cable and satellite service, with an office located in Daytona Beach, Florida. American Support is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner is a 61-year-old female who was hired on August 19, 2008, as a telemarketer for Evergreen, a predecessor company to American Support. Petitioner worked in telemarketing for approximately one year, was laid off by Evergreen, but was shortly thereafter reemployed by Evergreen as a receptionist/administrative assistant. Between October 2011 and December 2011, Petitioner solely performed receptionist duties. Petitioner was replaced as company receptionist by Debora Jenkins, whom Petitioner helped train. Ms. Jenkins was hired on a full-time temporary basis as the company was transitioning to new ownership. In December 2011, Petitioner was promoted to Human Resources Assistant by Nancy Cantero, Human Resources Director for American Support beginning in November 2011. Petitioner’s duties were to initiate and process criminal background checks and credit checks on applicants, validate I-9 information received for newly hired employees, create personnel files for new employees, and manage employee personnel files. Employee personnel files contain personal identifying information including dates of birth, social security numbers, driver’s licenses, and the results of criminal background and credit checks. Both parties agree that keeping applicants’ and employees’ personal information protected is a high priority for the Human Resources Department. Ms. Cantero left American Support in February 2012 and was replaced by Steven Schaible, first as a Human Resources Generalist under contract, then as corporate Human Resources Manager in March 2012. In his capacity as Manager, Mr. Schaible supervised Petitioner and two Human Resources Recruiters: Warren Hernandez and Elaine Zoe. Ms. Zoe was a virtual recruiter operating from her home in Phoenix, Arizona. Petitioner described Mr. Schaible as very friendly and outgoing when he first became Human Resources Manager. In mid-April 2012, Mr. Schaible hired a third recruiter, Anthony Sarelli, at a rate of $17 per hour. No evidence was introduced to establish the hourly rate of either Mr. Hernandez or Ms. Zoe, but Mr. Hernandez earned less than $17 per hour. Petitioner earned $13.50 per hour as Human Resources Assistant. On Thursday, April 19, 2012, Ms. Jenkins, the temporary receptionist, gave her notice and stated that she would be starting a new job Monday, April 23, 2012. Ms. Jenkins’ last day on the job was Friday, April 20, 2012. Mr. Schaible, together with Mary Celle, Vice President of Operations, made a decision to eliminate the position of receptionist. Mr. Schaible had been unable to keep Ms. Jenkins busy full-time with receptionist duties such as answering and routing phone calls, accepting parcel deliveries, handing out job applications, and directing individuals to appropriate offices. Mr. Schaible determined Petitioner was competent to perform these duties, in light of her previous service as company receptionist. Petitioner had the day off on Friday, April 20, 2012. When she returned to work on Monday, April 23, 2012, Mr. Schaible informed Petitioner that she would take over the receptionist duties while continuing to serve as Human Resources Assistant. Petitioner was physically moved from her desk to the receptionist desk at the front of the building.2/ Neither Petitioner’s title nor her salary changed when she was moved to the receptionist desk. Mr. Schaible made efforts to reduce Petitioner’s duties as Human Resources Assistant, reassigning responsibility of managing Kahuna, a software program through which new telemarketers were assigned log-in and password information, to a payroll employee, Maryanna Hilton. Additionally, Mr. Schaible instructed Petitioner to discontinue sending personal faxes for other employees. The company had taken some steps to streamline the receptionist function to make it more efficient and less time- consuming. For example, the company moved from paper applications to an online application system. The receptionist was to direct persons inquiring about job applications to computer terminals located at the building entrance in front of the receptionist desk. Similarly, the company telephone system was changed from a switchboard to automatic routing of calls to direct extensions by department. Petitioner was instructed to continue her regular Human Resources duties, but to place personnel files in a locked Human Resources file room located ten feet from the receptionist desk when she was away from her desk. On April 24, 2012, Mr. Schaible arrived at work early and noticed a stack of employee personnel files on the receptionist desk. Petitioner was not at the desk. Mr. Schaible concluded that the files had remained on the desk overnight. The files contained copies of social security cards, driver’s licenses, and the results of criminal background checks and credit checks for newly hired employees. Mr. Schaible secured the files and addressed Petitioner about the issue later that day. Mr. Schaible stressed with Petitioner the importance of keeping personnel files secure, and offered to get her a rolling file cabinet. The next day, April 25, 2012, Petitioner sent Mr. Schaible the following e-mail: “I apologize for the files when I left . . . it won’t happen again.” The following day, April 26, 2012, Mr. Schaible found a personnel file containing personal identifying information on Petitioner’s desk. Mr. Schaible removed the file and placed it in the locked file room. Later that same day, Petitioner sent the following e-mail to Mr. Schaible: “Will make sure forms are upside down on my desk before I take a break . . . my bad.” Mr. Schaible spoke to Petitioner that same day and explained that turning files upside down on the desk in her absence was not sufficient. He explained that personnel files must be secured in the locked file room when she was not at her desk. On Monday, April 30, 2012, Petitioner was on vacation, and Mr. Schaible sat at the front desk for at least some part of the day.3/ He discovered in one of the desk drawers over 50 completed W-4 forms for current employees. Mr. Schaible discussed with Ms. Celle the need to initiate the company’s progressive discipline policy and give Petitioner a verbal warning.4/ Mr. Schaible planned to meet with Petitioner late in the afternoon on May 1, 2012, and deliver the verbal warning. Petitioner was back in the office on May 1, 2012. While Petitioner was on a break and Ms. Hilton was manning the receptionist desk for Petitioner, Mr. Schaible discovered six personnel files on the desk. Mr. Schaible removed the files and decided to modify the verbal warning to a written warning, in essence moving to the second step of the company’s progressive discipline policy. Mr. Schaible did not have a meeting with Petitioner on May 1, 2012, as planned. On May 2, 2012, Mr. Schaible planned to meet with Petitioner at 3:00 p.m. to present her with the written warning and discuss the confidentiality issues. He requested that Carrie Santana, Manager of Customer Care and Quality, attend the meeting as well. At 3:00 p.m., Mr. Schaible asked Petitioner to come to his office. She was busily working in the Kahuna program, adding two new employees at the request of a manager in the Jacksonville office. Petitioner requested Mr. Schaible to wait until she completed the log-in and password information for the new employees. Mr. Schaible became angry, told her that task would have to wait, and ordered her into his office immediately. Petitioner accompanied Mr. Schaible to his office, where Ms. Santana was waiting. Mr. Schaible confronted Petitioner with the W-4 forms he had found in the receptionist desk on April 30, 2012, as evidence of her failure to follow his directions to secure personal information of company employees. Before Mr. Schaible brought up the six personnel files he had removed from the desk the previous day, Petitioner stated, “I quit,” stood up and left Mr. Schaible’s office, then exited the building. Petitioner denies that she quit her job on May 2, 2012, instead testifying that she stated, “I quit this,” meaning she quit Mr. Schaible’s treatment toward her. However, Mr. Schaible’s testimony that Petitioner stated, “I quit” on May 2, 2012, was corroborated by Petitioner’s own e-mail dated May 3, 2012, to company President Matthew Zemon, as well as Ms. Santana’s written memorandum dated May 3, 2012, in which she memorialized the events of May 2, 2012. The evidence conflicted as to whether Petitioner returned to the office on May 2, 2012, following the disciplinary meeting. Mr. Schaible testified he did not see Petitioner after the meeting that day or the next day, May 3, 2012. Petitioner testified that she returned to the building within 30 minutes, stating first that she went into Mr. Schaible’s office to complain about his treatment of her, but later testifying that his office door was closed, so she did not go in to see him. Mr. Schaible’s testimony on this issue is credible and accepted by the undersigned. Mr. Schaible e-mailed Ms. Celle following the disciplinary meeting on May 2, 2012, informing Ms. Celle that Petitioner had resigned. Mr. Schaible then completed a Record of Termination for Petitioner showing a separation date of May 2, 2012. The evidence showed that American Support did not accept Petitioner’s resignation. In response to Petitioner’s email of May 3, 2012, Mr. Zemon e-mailed Mr. Schaible and asked him to contact Petitioner and offer her a position in inbound/outbound sales at the high end of the pay range. Mr. Schaible did so, but Petitioner did not accept the offer. Petitioner clearly considered her assignment to the receptionist desk to be demeaning. She was subjected to comments from other employees suggesting she had been demoted because she could not perform Human Resources duties. She felt that the Human Resources Assistant did not belong at the front desk. Petitioner was overwhelmed with performing Human Resources duties while assisting job applicants at the computers, answering telephone calls that were not automatically routed, accepting delivered parcels, and dealing with the myriad inquiries typically made of the receptionist at any business. Petitioner complained that it was impossible to secure applicants’ and employees’ personal information with other employees passing by the front desk on their way in and out of the building. She noted that running back and forth to the Human Resources file room every time she was required to get up from the desk -- even though it was only ten feet away -- rendered her work inefficient, if not impossible. In support of her argument that she was discriminated against based on her sex, Petitioner alleged that Mr. Schaible hired a second male recruiter out of a mixed pool of applicants, that Mr. Schaible made inappropriate comments about some applicants, and that he hired a male recruiter at a rate of $17 per hour -– higher than other Human Resources employees. Petitioner submitted no evidence to establish what comments were made about any applicant for the position of Human Resources recruiter. As to hourly rates of pay, Petitioner testified that the new recruiter was paid at a higher rate than Mr. Hernandez. Further, Petitioner did not produce any evidence as to the rates of pay for either Ms. Zoe or Mr. Hernandez. Petitioner also alleged that following her move to the receptionist desk on April 23, 2012, Mr. Schaible instructed her not to take breaks with Mr. Hernandez, not to check her work e- mails from home, and excluded her from meetings with other Human Resources employees. However, Petitioner was unable to testify with certainty that other employees were allowed to continue checking e-mails from home. Ms. Zoe, the female virtual recruiter on the team, continued to participate in Human Resources meetings. Petitioner likewise complained that she was denied a raise while Mr. Hernandez received one. On April 19, 2012, in response to Mr. Schaible’s request, Petitioner submitted a self- evaluation for Mr. Schaible’s consideration. Petitioner testified that Mr. Hernandez told her a week later that he received a raise. Petitioner then asked Mr. Schaible about the time period for a decision on her raise; Mr. Schaible responded, according to Petitioner, “Not sure about it yet.[5/]” Petitioner’s hearsay statement alone is insufficient to support a finding that Mr. Hernandez received a raise. No evidence was introduced as to the status of other employees’ evaluations or raises. Petitioner’s most-repeated claim is that Mr. Schaible treated her unprofessionally by speaking to her sharply in front of other employees, yelling when he ordered her into his office on May 2, 2012, and “slamming” the W-4 files on the desk during the disciplinary meeting. Petitioner felt his treatment of her was demeaning, harassing, and embarrassing. Petitioner presented no evidence, however, that Mr. Schaible’s treatment of her was related in any way to her status as a female. In fact, when Mr. Schaible hired a replacement Human Resources Assistant, he hired another female. Petitioner alleged that Mr. Schaible acted in retaliation, but could not articulate any event for which the retaliation was lodged. When questioned by the undersigned as to her retaliation claim, Petitioner testified, It just didn’t seem like the right thing for an office atmosphere, I should say, or speak to an employee in such a manner. So it’s just his mannerism and his attitude toward me that made me feel like it was a retaliation [sic] for something, and I couldn’t figure out what it was.[6/] Petitioner may very well have been put in an impossible work situation, treated unfairly, or forced to resign. However, there is no evidence that her treatment was related in any way to her status as a female. Petitioner did admit to improperly handling employee personnel files and applicant files on at least two occasions. She denies that leaving the six files on the desk when Ms. Hilton was covering for her break was improper because Ms. Hilton worked in the payroll department and had access to employee personal information. As to the W-4 forms in her desk, Petitioner admitted that even if the forms were left in the desk by Ms. Jenkins, Petitioner was ultimately responsible for securing those documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of June, 2013, 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 6th day of June, 2013.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 26, 2011.
Findings Of Fact Petitioner, Teresa Urbana, began employment with Sanmar Corporation (Sanmar) in August 2008 as a seasonal employee and worked there until November 2008. She was rehired in July 2009 in a Re-stocker position. She was promoted to Order Processor and was made a full-time regular employee later that year. Sanmar is a distributor of promotional apparel and accessories to companies that sell promotional apparel. The Jacksonville location is one of seven distribution centers (DC) throughout the country. The Jacksonville DC fulfills customer orders by receiving, picking, checking, packing and shipping them. Respondent is an employer as contemplated by chapter 760, Florida Statutes. An Order Processor is responsible for picking and checking the order, and then packing the order for distribution to Sanmar's customers. The position description for Order Processor includes the following: PHYSICAL DEMANDS: While performing the duties of this job, the employee is constantly required to walk and stand. The employee is frequently required to reach with hands and arms, handle or feel product, to pull/push cart with product, grasp and perform repetitive hand, wrist and arm motions. The employee is frequently required to climb, kneel/squat, bend and carry. The employee occasionally lifts and/or moves up to 40 pounds, and seldom lifts and/or moves up to 50 pounds. Specific vision abilities required by this job include close vision, color vision, peripheral vision, depth perception and ability to adjust focus. WORK ENVIRONMENT: Work environment is moderately noisy. The employee is occasionally required to work near conveyor systems. There is exposure to dust and changes in weather conditions. Employee must be able to handle stress that is involved in meeting strenuous customer deadlines, working in high volume areas, and be flexible and able to interact with employees at all times. Paul Rhodes is the Distribution Manager and Alice Torres is Human Resources Manager for Sanmar's Jacksonville DC. Ms. Torres reports to Olivia Thurmond, Senior Manager of Human Resources. Ms. Thurmond is in the corporate headquarters for Sanmar, which is located in Issaquah, Washington. Sanmar's Employee Handbook includes an Equal Employment Opportunity Policy, an Anti-Harassment and Non-Discrimination Policy, and a Reasonable Accommodation Policy. Petitioner received a copy of the Employee Handbook. Allegations Related to Disability On April 21, 2011, Petitioner approached Ms. Torres to inform her of pain Petitioner was having in her wrists and hands. Petitioner informed Ms. Torres that she believed that this condition was work-related. With the help of Ms. Torres' assistant, Yadira Batlle, Petitioner completed an Accident/Incident Report. Ms. Batlle actually completed the form based on information provided by Petitioner, because Petitioner is not fluent in English, as her primary language is Spanish. The Accident/Incident Report was signed by Petitioner and references carpel-tunnel in both hands as the description of the injury. On that same day, Sanmar provided Petitioner with contact information for Solantic Baptist Occupational Health (Solantic) so she could receive evaluation and treatment for her injury which Petitioner claimed was work related. While there was some dispute as to whether Petitioner's condition was work related and covered by workers' compensation, it is undisputed that Sanmar reported the injury to its workers' compensation carrier and Petitioner did receive benefits and medical treatment through workers' compensation. On April 22, 2011, Petitioner was evaluated at Solantic. As a result of her evaluation, Petitioner was released to return to work with a work restriction of wearing wrist braces. Petitioner continued to perform her Order Processor job duties wearing wrist braces. Petitioner also was evaluated by her personal physician, Dr. Esquivia-Munoz, who provided a note dated June 1, 2011, which stated as follows: This patient has bilateral moderate carpal tunnell [sic] syndrome worse at right wrist, which is interfering with her regular duties and regular activities for which she will need surgical decompression in the future. When Ms. Torres received this doctor's note, she explained to Petitioner that the note did not include any specifics as to any work restrictions. As a result, Ms. Torres advised Petitioner she could not allow her to return to work until the company received work restrictions from her doctor. Therefore, Sanmar placed Petitioner on a leave of absence under the Family and Medical Leave Act (FMLA). On June 2, 2012, Ms. Torres sent a fax to Dr. Esquivia-Munoz with a request that he complete an attached certification of Petitioner's health condition. He completed the form, but the information he provided essentially repeated what he wrote on the June 2, 2011, note, and did not provide specific working restrictions which Sanmar requested and needed to be able to provide appropriate and safe working restrictions for Petitioner. Ms. Torres forwarded these documents to Christy Hammond, Sanmar's Leave Supervisor, who is located in the Washington office. On June 3, 2012, Lori Shutter, Sanmar's Benefits Manager, faxed a request to Dr. Esquivia-Munoz, requesting that he complete an enclosed "release to return to work" form identifying work restrictions. She also attached a position description for the Order Processor position. Sanmar did not receive a completed form or further specific work restrictions from Dr. Esquivia-Munoz despite this request. Petitioner went back to Concentra, the workers' compensation medical provider, for further evaluation. Concentra identified her activity status as "modified activity" and identified her work restrictions as no pushing, pulling or lifting over zero pounds, and referred her to a hand surgeon. The facsimile shows that this information was faxed to Sanmar on June 13, 2011. Ms. Torres forwarded this information to Ms. Hammond in the corporate office, and discussed it with Mr. Rhodes. The Order Processor position involved frequent reaching, pushing, grasping, and performing repetitive hand motions. Pushing, pulling, and lifting are essential functions of the Order Processor job. Accordingly, the work restrictions received from Concentra prevented Petitioner from performing essential functions of the job of Order Processor, with or without reasonable accommodations. Sanmar found light-duty work that Petitioner could do within the work restrictions as set forth by Concentra. She was assigned to do "go-backs," which is part of the order processing job, but not the entire job. Go-backs are items, such as hats or t-shirts, found in the wrong bins. The go-back work required Petitioner to use a computer to find the product's correct location, write down that location, and carry the product to the correct location. There is no regular go-back position at Sanmar. This was a temporary assignment created to accommodate Petitioner by eliminating many of the regular functions of the Order Processor position, including pushing, pulling, picking, and packing items to fill customer orders. On June 13, 2011, Ms. Torres called Petitioner to advise her that Sanmar had light-duty work within Petitioner's work restrictions. Petitioner returned to work on June 15, 2011, performing go-backs at her regular rate of pay, i.e., as when she could perform all functions of the Order Processor position. On June 17, 2011, Petitioner submitted a Leave of Absence Request Form, requesting to commence leave on June 20, 2011. Ms. Torres then provided a Notice of Eligibility and Rights and Responsibilities for leave under FMLA to her. This document notified Petitioner that she was eligible to receive FMLA leave, and further notified her that she needed to provide sufficient certification to support her request for FMLA leave by July 1, 2011. On June 20, 2011, Petitioner clocked in at work at approximately 12:24 p.m., after an appointment with Petitioner's hand specialist, Dr. Greider. Petitioner immediately went to the Human Resources office and provided a note from Dr. Greider which confirmed that she had an appointment with him that morning, and left his office at 11:30. Petitioner also provided a doctor's note from Dr. Greider detailing Petitioner's work restrictions. She gave the note to Ms. Batlle, because Ms. Torres was out of the office at that time. The note reads as follows: LIGHT DUTY WORK RESTRICTIONS No repetitive gripping and pinching. No repetitive pulling and pushing. No lifting greater than 5 pounds. No production keying (until further notice) Frequent rest breaks- 5 minutes per hour. Effective until pending surgery. Ms. Batlle left copies of these doctor's notes for Ms. Torres, along with a handwritten note stating that Petitioner was going home for the day. Ms. Thurmond happened to be visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes, along with Ms. Hammond by telephone, discussed Petitioner's new work restrictions and concluded that, because processing go- backs required keyboarding, gripping and pinching, Petitioner could no longer perform that light-duty work.2/ Accordingly, Sanmar approved Petitioner's request for FMLA leave. Beginning June 21, 2011, Petitioner began taking the FMLA leave she had requested. During this leave, Petitioner had surgery on her right hand on July 21, 2011. Petitioner remained on FMLA leave until September 13, 2011, at which point she had exhausted her FMLA leave entitlement and had still not been released to work. Rather than terminating Petitioner's employment at that time, Sanmar provided additional leave until the company was able to determine whether Petitioner would be able to return to work. Sanmar provided Petitioner an FMLA Designation Notice which informed her that her absence from September 14 through September 25 would be provided to her "as a reasonable accommodation under the Americans with Disability Act (ADA)." On September 16, 2011, Ms. Hammond prepared a letter to Dr. Greider outlining the modified work description in doing go-backs, and asking him to advise whether or not she would be able to perform those duties. Dr. Greider faxed a reply to Ms. Hammond on September 20, 2011, advising that the activities described in Ms. Hammond's letter would be acceptable. Ms. Torres and Ms. Hammond prepared a letter to Petitioner dated September 22, 2011, advising her that Sanmar had received a written confirmation from Dr. Greider that she had been approved to return to work with the modified duties (performing go-backs). The letter further notified Petitioner that she was expected to return to work on September 26, 2011, which she did. Ms. Torres did not receive any complaints from Petitioner during the September to November timeframe regarding her ability to perform the go-backs duty. On November 2, 2011, Petitioner provided Ms. Torres with a note from Dr. Grieder confirming Petitioner would be out of work for surgery on her left hand from November 7 through 10, 2011. The note states the following: Patient is scheduled for hand surgery on 11/7/11 and may remain out of work from date of surgery until 11/10/11 at which point patient may return to work with no use of the left hand until follow up appointment on 11/21/11. Ms. Torres and Petitioner had a discussion regarding Dr. Greider's note during which Petitioner expressed doubt that she would be able to return to work November 10 as she still had restrictions on the use of her right hand and did not know what kind of work she would be able to perform after surgery on her left hand. Ms. Torres than contacted Ms. Hammond via e-mail requesting her assistance in confirming the work restrictions, if any, on Petitioner's use of her right hand. On November 8, 2011, Ms. Hammond, through the company's workers' compensation carrier, received confirmation from Dr. Greider's office that she was released from work restrictions with regard to her right hand as of October 17, 2011.3/ On November 9 and 10, Petitioner left voice mail messages for Ms. Torres and her assistant regarding her inability to work. On November 11, 2011, Petitioner did not report to work. Because this was the date that had been indicated by Dr. Greider as the date she was released to return to work (regarding her right hand), and after receiving guidance from Ms. Hammond and input from the workers' compensation carrier, Ms. Torres called Petitioner and informed her that Sanmar had not received any additional information from Dr. Grieder and advised Petitioner that it was Petitioner's responsibility to obtain a new note from her doctor if she could not work. Ms. Torres reminded Petitioner that she needed to come in to discuss her restrictions and possible light-duty work. Ms. Torres received another call from Petitioner on November 14, 2011. Ms. Torres reiterated to Petitioner that she needed to report to work with her restrictions so Sanmar could attempt to accommodate her appropriately. Petitioner reported to work later that same day. She met with Mr. Rhodes and Ms. Torres to discuss her ability to work and what accommodations would be necessary. Mr. Rhodes first advised Petitioner that she would be doing go-backs which could be performed without the use of her left hand. When Petitioner expressed concern about her ability to perform that task, Mr. Rhodes agreed to assign her a temporary light-duty position auditing the restock until they could review the matter further. Petitioner agreed to perform the restock work. Also on November 14, 2011, Ms. Torres received a fax from Dr. Grieder's office which attached the same November 2, 2011, note regarding Petitioner's restrictions. Nothing in the November 14, 2011, fax from Dr. Grieder's office changed Petitioner's work restrictions. Auditing the restock is not a regular position at Sanmar, but is one part of the many duties of the inventory department. In offering this temporary work to Petitioner, Sanmar eliminated many of the essential functions of the Order Processor job. Petitioner left the November 14 meeting with Ms. Torres and Mr. Rhodes and worked for about two hours. After about two hours, Petitioner apparently fainted and left work in an ambulance which transported her to the hospital. That was the last day Petitioner worked for Sanmar. Petitioner received notes from Dr. Greider dated November 21, 2011, and December 9, 2011, listing the same light duty restrictions (i.e., no repetitive gripping and pinching, no repetitive pulling and pushing, no lifting greater than five pounds, no production keying, and frequent rest breaks), valid for the left hand only. Petitioner also received a note from Dr. Greider dated January 23, 2012, indicating that she may continue previous restrictions until February 6, 2012, at which time the patient may return to work full duty. However, Ms. Hammond, Ms. Thurmond, and Ms. Torres, all testified that they did not receive this note. Petitioner was seen by an orthopedic doctor in August 2012. The doctor's note indicates that she has a permanent work restriction which precludes her from lifting more than 10 to 15 pounds. Facts regarding disciplinary action Through an employee loan program, Sanmar approves loans to employees under certain circumstances. In late December 2010, an incident arose involving Petitioner and her request for an employee loan. On December 28, 2010, Ms. Torres heard Petitioner speaking in a loud voice outside of Ms. Torres' office. She heard Petitioner accusing her assistant at that time, Sandra Colindres, of refusing to help her with papers required for such a loan. Petitioner spoke in a tone of voice that Ms. Torres felt was not appropriate for the office. She then asked Petitioner to meet with her in her office. While in Ms. Torres' office, Petitioner complained that Ms. Colindres was unwilling to help her with the loan paperwork. Petitioner had not been scheduled to work that day. Ms. Torres informed Petitioner that the loan process had very recently been changed, and that the loan would need to be approved by Human Resources if it were determined that there was a critical need. Ms. Torres considered Petitioner's tone of voice during this conversation in her office to be disrespectful, demanding and rude. At the end of this meeting, Ms. Torres told Ms. Colindres to give Petitioner the employee loan form. When Petitioner left Ms. Torres' office, Petitioner approached a co- worker who was also in the office and began talking in a loud voice about what had just happened. Ms. Torres overheard Petitioner talking about their meeting to another employee and asked Petitioner to discuss the issue in her office. Ms. Torres told Petitioner that her conduct was disruptive, unprofessional, and unacceptable. She told Petitioner that she had caused a disturbance in the workplace, that Ms. Torres would be informing the DC manager about this incident, and that Petitioner would likely be receiving corrective action.4/ Shortly thereafter, Ms. Torres accompanied a pest control representative to the break room. When they arrived in the break room, Ms. Torres observed Petitioner telling a group of employees her version of the events in her office. The employees dispersed when they saw Ms. Torres enter the break room. When Ms. Torres turned to leave the break room, she saw Petitioner complaining to yet another group of employees about the incident. Ms. Torres considered this behavior to be extremely disruptive. Ms. Torres then asked a supervisor, Tasha Porter, to instruct Petitioner to leave the premises. Ms. Torres was relatively new to the company, and she consulted with Paul Rhodes and Olivia Thurmond to determine appropriate disciplinary action that would be consistent with the company's response to similar instances of conduct. Mr. Rhodes was out of the office from December 27, 2010, through January 2, 2011. On January 3, 2011, Mr. Rhodes and Petitioner met to discuss the December 28, 2010, incident. Tasha Porter also attended the meeting and supervisor Daniel Serrano attended the meeting as an interpreter. Mr. Rhodes also spoke to and received written statements from Alice Torres, Sandra Colindres and Tasha Porter regarding the incident. After reviewing the matter, a decision was made to give Petitioner a final Written Warning for unprofessional conduct and disruptive behavior which had taken place on December 28, 2010. Petitioner refused to sign the final Written Warning, did not acknowledge that she committed the actions described, but acknowledged that the conduct described would be unacceptable and that a person engaging in such conduct could be terminated. The final Written Warning was given to Petitioner on January 10, 2011, by Mr. Serrano, who also speaks Spanish. Prior to receiving this final Written Warning, Petitioner had not reported a disability to anyone at Sanmar. There is nothing in the record to establish or suggest that any one at Sanmar knew, perceived or regarded Petitioner as having a disability at that time. On the evening of April 18, 2011, Group Lead Terri Andrews was supervising the employees on the lo-bay floor. Employees were working overtime to get all customer orders shipped by the end of the day. Ms. Andrews was at the print station, as Petitioner approached her. Ms. Andrews directed Petitioner to report to the pack line. Petitioner told Ms. Andrews that she wanted to go home. Ms. Andrews told Petitioner again to report to the pack line and Petitioner left the floor. Ms. Andrews described Petitioner as appearing agitated. Petitioner arrived at the pack line where Becquer Rosado, another Group Lead, was directing employees where they were needed the most. Mr. Becquer saw Petitioner approaching and before he could direct her to a position, she put her hand up in the air, walked past him, and told him that she would only take instructions from Patricia Alonso and not from him. This was done in front of other employees. Patricia Alonso was a Department Lead for the pack line. A Group Lead is superior to a Department Lead because Group Leads oversee several functions, while Department Leads only supervise a single function. Employees are expected to follow the directions of both Group and Department Leads. Mr. Rosado reported this incident to his supervisor, Lori Pritchard, and completed an Employee Concern form the following day. Ms. Andrews also reported Petitioner's behavior to Ms. Pritchard, and completed an Employee Concern form on April 21, 2011. It was that day that Petitioner approached Ms. Torres to talk about pain that Petitioner was having in her wrists and hands as more fully discussed in paragraph 6 above. Petitioner was not at work from April 21 until April 26, 2011. After reviewing the Employee Concern forms, Ms. Torres met with Petitioner regarding the April 18, 2011, incident. During this meeting, Petitioner denied being disrespectful to Ms. Andrews and Mr. Rosado. After speaking to Petitioner on April 26, 2011, Ms. Torres recommended that Petitioner be terminated for her actions of April 18, 2011, because Petitioner had just received a final Written Warning for her behavior on January 10, 2011. However, Mr. Rhodes decided to give Petitioner another chance and, instead of terminating Petitioner, decided that Sanmar would issue a Final Warning Follow Up Discussion Memo to Petitioner, which was done on May 5, 2011. This Discussion Memo reiterated that any future violation of company policy by Petitioner would result in further corrective action up to and including termination of employment. During May and June 2011, and pursuant to Sanmar's Voluntary Time Out (VTO) procedure, Petitioner volunteered on several occasions to go home when production was slow and Sanmar asked for volunteers. Employees interested in VTO simply had to write their names on the "Go Home Early Sheet." Sanmar then selected employees for VTO in the order in which the employees volunteered to go home early. Petitioner's name appears on the VTO sheets in evidence, and her name is near the top of the list on most days. She was not sent home early on days that she had not signed up for VTO on the Go Home Early sheet. On June 20, 2011, after leaving the doctor's notes referenced in paragraph 18 through 20 with Ms. Battle, Petitioner proceeded to the break room where Tasha Porter, a supervisor, found her engaged in a conversation with co-workers while on the clock and not on a break. When Ms. Porter asked Petitioner why she was in the break room while clocked in, Petitioner replied that she taking her break. Ms. Porter reported this to Ms. Torres. Afterwards, Petitioner returned to work processing go-backs, although another employee was doing the keyboarding, as further explained above. As discussed in paragraph 21 above, Ms. Thurmond was visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes discussed the incident in the break room and decided to issue a final Written Warning to Petitioner for falsification of time records for this incident of being "on the clock" while in the break room. This was the same meeting in which they discussed Petitioner's June 20, 2011, work restrictions. Ms. Torres and Ms. Thurmond issued a final Written Warning to Petitioner at the same meeting in which they notified her that Sanmar had approved Petitioner's request for FMLA leave. The weight of the evidence shows that this took place on June 21, 2011. On or around November 3, 2011, prior to Petitioner going on leave for her second hand surgery, Ms. Torres learned of an incident involving Petitioner and her son, Manuel Sanchez, who also worked for Sanmar. Specifically, Ms. Torres learned that Mr. Sanchez may have forged Petitioner's signature on a time-off request which asked for permission to be off work on October 28, 2011. After discussing this with Mr. Sanchez, Ms. Torres concluded that he had forged his mother's name on the time-off request at her request. Sanmar considered this to be falsification of company records. This is an offense for which Sanmar has disciplined employees in the past.5/ On Friday November 4, 2011, which was Petitioner's last day at work before taking leave for her second hand surgery, Ms. Torres discussed the forged time off request with Petitioner. Petitioner admitted that she had asked her son to fill out the request and sign her name. At the end of their conversation, Ms. Torres told Petitioner not to discuss their meeting or the situation with anyone, not even Petitioner's son, because the company was continuing to investigate the matter. Despite this instruction, Lori Pritchard, a supervisor, reported to Ms. Torres that Petitioner went directly to her son and had a heated discussion with him at the print station. Although Ms. Pritchard was unable to fully understand their conversation because it was in Spanish, Ms. Pritchard advised Ms. Torres that she believed they were discussing Ms. Torres' meeting with Petitioner. Following this incident, Ms. Torres met again with Mr. Sanchez and Mr. Sanchez admitted he and Petitioner were discussing the forged time off request at the print station on November 4. Ms. Torres, however, was unable to speak to Petitioner about this incident until November 14, 2011, when Petitioner returned to work after her November 7 (second) surgery. During the meeting with Petitioner upon her return to work on November 14, 2011, (see paragraph 30), Mr. Torres and Mr. Rhodes told Petitioner the company was still reviewing the incident regarding the forged time-off request. They advised Petitioner that they had confirmation she and Mr. Sanchez discussed the forged time off request at the print station. While Petitioner denied this, she admitted she talked about the incident with her son at home, where Mr. Sanchez also resided. Ms. Torres and Mr. Rhodes believed Petitioner should be terminated for the November 4 incident, because it involved an incident of insubordination, following the previous warnings of unprofessional conduct issued In January and May 2011. However, they wanted to discuss their recommendation with Ms. Thurmond and Marty Rask, Operations Manager, in keeping with the company's normal practice. Although they planned to talk to Ms. Thurmond and Mr. Rask and, with their concurrence, terminate Petitioner later during the day on November 14, they were not able to do so because of Petitioner unexpectedly became ill on that day. This began a lengthy leave of absence from which she never returned. Mr. Rhodes and Ms. Torres recommended that Sanmar terminate Petitioner for her insubordination on November 4, when she discussed the document falsification issue with her son in violation of Ms. Torres' instructions, as well as her dishonest and evasive response on November 14, when Mr. Rhodes and Ms. Torres spoke to her about the incident. The final decision to terminate Petitioner was made on November 30, 2011. However, Sanmar did not communicate the termination decision to Petitioner until January 24, 2012. This delay resulted from circumstances related to Petitioner's medical leave and on-going workers' compensation proceedings.6/ Sanmar decided to move forward with its November 30, 2011, termination decision. Sanmar's usual practice of communicating employee termination is to inform the employee in person. However, Christy Hammond had been communicating with Petitioner and respected Petitioner's request that she not be required to come to the workplace only to be fired. Therefore, Sanmar decided to issue the termination letter via mail. Accordingly, on January 24, 2012, Sanmar sent Petitioner a termination letter signed by Olivia Thurmond. Enclosed with the letter was a documentation form explaining the reasons for Petitioner's termination, i.e., Petitioner's insubordination on November 4 and her dishonest and evasive behavior on November 14, combined with her prior discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Teresa Urbina. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012.
Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Deborah Revell-Nicholson ""Nicholson"), was discriminated against by termination from her employment on the basis of her sex (female/pregnancy), in violation of the Human Rights Act of 1977, as amended, specifically Section 760.10, Florida Statutes (1989).
Findings Of Fact The Petitioner, at times pertinent hereto, was employed as an emergency medical technician (EMT) with the Franklin County Emergency Medical Service. The Respondent, now known as Emerald Coast Hospital ("Hospital") operated the Franklin County Emergency Medical Service, including its ambulances ("EMS"). The Petitioner was hired in September of 1989 by Mr. George Potter, then the director of the Franklin County EMS. The Petitioner was terminated by Mr. Shiver, the Assistant Administrator of the Hospital in November of 1989. When the Petitioner was hired by Mr. Potter, she was pregnant and informed Mr. Potter of that fact. She had a report or statement from her physician attesting to the fact that her pregnancy should not interfere with her duties as an emergency medical technician ("EMT"). Mr. Potter discussed the matter with her and told her that he would approve her hiring in her pregnant condition so long as she agreed not to hold the EMS liable for any injury which might occur to her baby through the performance of her duties with the EMS, and she agreed to this arrangement; and Mr. Potter thereupon hired her. Mr. Potter left the employ of the EMS and the Hospital at some point during the Petitioner's tenure with EMS. Mr. Robbie Poe took his place as the Petitioner's supervisor. Both the Petitioner and the Petitioner's witness, Kurt Valle, indicated in their testimony that Mr. Poe had made a comment to Mr. Valle on some occasion that the Petitioner's pregnancy might be a "possible liability". The testimony of record does not reflect in what context Mr. Poe might have made such a statement. It cannot, thus, be determined whether he merely meant that her pregnant condition might prevent her from effectively performing her duties or whether he meant that he might consider it a reason to terminate her. In any event, there were a number of instances during the brief tenure of her employment when the Petitioner engaged in unprofessional conduct by expressing her attitudes and opinions concerning EMS policies and practices loudly and angrily to co-workers or to her supervisor within the hearing of patients and their families, which was contrary to hospital and EMS policy. This is because the Hospital and the EMS of the Hospital wishes to insure that the public has confidence in its EMS because of the sensitivity of the duties performed by the EMS employees in terms of their responsibility for patients who are often in life-threatening situations and because of the sensitivity they should show for the feelings of the families of those patients, as well as the patients themselves. Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS of the Hospital, which employed the Petitioner, became aware of a number of these instances where the Petitioner had public, verbal altercations with Mr. Poe or her co-workers. The Petitioner, for instance, had "had words" with Mr. Poe about her being required to drive an advanced-life-support-equipped vehicle on a true emergency, when she maintained that she had never done it before. This upset her, and she complained to Mr. Poe, although he never reprimanded her concerning that verbal altercation or her performance in that situation. These incidents led Mr. Poe and Mr. Shiver to have a concern about the Petitioner's capabilities as a member of the EMS in terms of her temperament or emotional stability under stressful situations involving patient emergencies. The problem culminated in an episode where the Petitioner's ambulance and witness, Kurt Valle's ambulance, which itself was equipped with advanced life support equipment, answered a call concerning a patient with a cardiac emergency. The Petitioner's vehicle arrived on the scene of the emergency, where the stricken patient was located, where immediately thereafter or at about the same time, Mr. Valle's vehicle arrived. The patient was apparently loaded into the Petitioner's vehicle, which she had been driving or at least in which she arrived, on duty, at the scene. Because of this and the need for advanced life support equipment for this patient, the equipment on Mr. Valle's vehicle was transferred to the Petitioner's vehicle. Mr. Valle was assigned to drive the Petitioner's vehicle to the Hospital with the patient, who was undergoing advanced-life-support assistance. The Petitioner was then ordered to drive Mr. Valle's vehicle to the Hospital. Upon arriving at the Hospital, where the patient was delivered to the emergency room in very critical condition, the Petitioner was observed to be in a very agitated state, leaving her vehicle and neglecting to turn off the lights and siren. She immediately thereafter engaged in a verbal altercation with Mr. Poe, her supervisor, concerning his decision that she should not drive the vehicle containing the patient and the advanced- life-support equipment and his relegation of her to drive the unused vehicle back to the Hospital. She initiated a hostile, heated argument with Mr. Poe inside the emergency room concerning this grievance; and at Mr. Poe's direction, they continued their discussion outside the emergency room. Much of this argument was conducted in front of the patient's family, contemporaneously with the patient's death, all of which understandably could be quite upsetting to the patient's family and constituted unprofessional conduct for an EMT. This last incident was duly reported to Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS, with the result that he decided to terminate the Petitioner. Mr. Poe played no part in the decision to terminate the Petitioner. He merely informed the Petitioner of the termination decision, which was made by Mr. Shiver. When Mr. Shiver made the decision to terminate the Petitioner, he did not know that the Petitioner was pregnant and had never actually had any contact with the Petitioner before her termination. He did, however, offer to discuss and review the termination decision with the Petitioner when she later called him about it. Mr. Poe, when he informed her of her discharge, indicated to the Petitioner that she had been a good worker and that she was being terminated because of budget problems and a necessary layoff of certain personnel. He made a statement to the effect that she was being laid off first because she had been the last hired. In fact, Mr. Poe played no part in that decision and that was not the reason for the decision. Thus, whether, as the Petitioner maintains, she was not actually the last hired, but that a Mr. Scott Simmons and one or two other personnel had been hired after her, is immaterial to the relevant facts and ultimate conclusion in this case because the Petitioner was actually terminated for her unprofessional conduct and attitude and not because of budgetary constraints. In fact, a budgetary cutback and the necessity for layoffs had been announced by the County Commission, which could have resulted in layoffs in the EMS, including the Petitioner's position. However, on the same day that decision had been announced, the County government officials responsible countermanded it because it would have left insufficient emergency medical personnel on duty on both sides of the barrier of the Apalachicola River, which divides Franklin County. It was deemed to be an unwise decision and, therefore, rescinded. Budgetary constraints and resulting layoffs being putatively necessitated thereby actually played no part in the decision to terminate the Petitioner. Rather, her less-than-professional conduct was the cause of the decision to terminate her by Mr. Shiver, in which decision Mr. Poe had no role. Consequently, the Petitioner's testimony that she had known Mr. Poe ever since they had been in fire fighting school together, that he had tried to date her, which she refused; and her testimony that he had therefore made hostile comments concerning her being a liability because of her pregnancy, (even if Mr. Poe made the statements, which he denied), are immaterial in the context of the evidence and law pertaining to this proceeding, because Mr. Poe played no part in the termination decision. It was Mr. Shiver's decision, and he merely directed Mr. Poe to convey the decision to the Petitioner. Moreover, the Petitioner was employed by the Hospital and by its Assistant Administrator, Mr. Shiver. The Hospital, in fact, has approximately 75% female employees. Many have been pregnant before and after employment. The Hospital has never had a policy or a practice of terminating female employees on account of pregnancy. The EMS is part of, and a department of the Hospital, under the direction and supervision of Mr. Shiver. Moreover, the male EMT, Mr. Simmons, whom the Petitioner maintains was hired immediately after her termination to replace her was not actually hired to replace her because he was hired only on a "PRN" or "as-needed" basis approximately a month after the decision was made to terminate the Petitioner. Further, a female employee, Alisa Alexander, was hired after the termination of the Petitioner, and Mr. Shiver currently had, at the time of hearing, two female employees in-the EMS who are currently driving ambulances. In summary, because of the concerns about the above- mentioned incidents of unprofessional conduct, including the Petitioner's angry outbursts culminating in the incident in which the Petitioner berated her supervisor in the presence of the deceased patient's family concerning his decision not to let her drive the emergency vehicle and because of concerns expressed by her supervisor about her driving skills generally, Mr. Shiver elected to terminate the Petitioner. He did not do so because of the Petitioner's sex nor her pregnancy and, in fact, was not even aware of her pregnancy at the time he discharged her. Further, at the time of her termination and at the time of the incidents in question, the Petitioner was in a 90-day probationary status. All employees undergo such a probation immediately after hiring, during which an employee can be terminated without cause, provided in the employee's handbook of employment and job performance practices and policies. Mr. Shiver established that the Petitioner had signed a statement to the effect that she had read the handbook, including the terms concerning the three-month probationary period, upon being employed.
Recommendation 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 the Petition of Deborah RevellNicholson be dismissed in its entirety. DONE AND ENTERED this 2nd day of March, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1992. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Deborah Revell-Nicholson Route 3, Box 5626-2 Crawfordville, FL 32327 Henry D. Shiver Assistant Administrator Provident Medical Corporation of Apalachicola Washington Square Apalachicola, FL 32320
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
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 20th day of October, 1993, 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 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 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 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
