The Issue Whether Respondent committed an unfair employment practice by discriminating against Petitioner on the basis of race, in violation of chapter 760, Florida Statutes (2012), and Title VII of the Civil Rights Act.
Findings Of Fact Mr. Nepton is a Hispanic man who worked as a collector for CCS from November, 2011, to February, 2012. CCS is a collection agency that employs approximately 80 collectors, who are divided into departments based on the different accounts they service. Mr. Nepton was originally hired to work under the supervision of Julio Castellon, and then was transferred to a unit supervised by Danielle Santilli. All of the work collectors perform is via telephone; persons who have outstanding bills are called in order to attempt collection of the debt. During his training in Ms. Santilli's department, he received most of his training from Ms. Santilli. According to Mr. Nepton, during these training sessions, Ms. Santilli made derogatory comments about Hispanic people. If the person being called was Hispanic, she would mention that Hispanic people were stupid, dumb, and never paid their bills. Mr. Nepton claims that the comments were made throughout his entire training, which lasted approximately one month. He claims that he reported his dislike of the derogatory comments to Ariel Castellon, a supervisor. Ms. Santilli testified, and denied ever making any derogatory or inappropriate remarks about Hispanics. Mr. Castellon also denied any knowledge of Ms. Santilli making any such remarks, and testified that Mr. Nepton never complained of any such comments while he worked at CCS. Lori French testified that in her capacity as the Human Resources Director, she never received any type of complaint regarding Ms. Santilli from any employee. The undersigned credits the testimony of the CCS employees, finding it consistent and credible in light of the scant evidence produced by Mr. Nepton. Mr. Nepton did not produce a single witness who could corroborate his testimony, despite the fact that the collectors worked in an open area, in close proximity to each other. The employee handbook instructed employees to report any workplace harassment of any type with the Human Resources Department. Mr. Nepton never filed such a complaint with the Human Resources Department. On February 1, 2012, Mr. Nepton received a call from a patient of a hospital inquiring as to whether the account was paid in full. Mr. Nepton requested the patient's date of birth, but the patient asked why that information was necessary. Mr. Nepton raised his voice and became argumentative with the patient. When Mr. Nepton was asked about the phone call by his supervisor, he became argumentative in the presence of the other collectors. On February 2, 2012, Mr. Nepton met with management regarding the incident on the previous day. He became agitated, raised his voice, and pointed his finger in the supervisor's face. Mr. Nepton, who was on probationary status, was discharged from his employment on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 19th day of December, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 19th day of December, 2012.
Findings Of Fact 1. Emmons was a Residential Services Supervisor who had a predetermination/liberty interest (name clearing) hearing held on August 24, 2012. After that hearing, he was terminated effective at the close of business on August 24, 2012 and notified of that fact via correspondence dated August 27, 2012. (See, e.g., Exhibit 4). 2. On September 4, 2012, Emmons submitted a written request to ECUA’s Director of Human Resources and Administrative Services (hereinafter “HR Director”) appealing disciplinary action taken against him in his employment with ECUA. 3. That same date, ECUA requested the services of an Administrative Law Judge (hereinafter “ALJ”) from the Florida Division of Administrative Hearings (“DOAH”) to conduct an evidentiary hearing and issue a Recommended Order to ECUA’s Executive Director pursuant to the Administrative Law Judge Services Contract previously entered into between ECUA and DOAH. 4. DOAH assigned an ALJ to preside over the matter, who in turn issued a Notice of Hearing scheduling an evidentiary hearing to take place beginning at 10:00 a.m. on October 15, 2012 in ECUA’s Board Room. 5. ECUA was present and ready to proceed with the evidentiary hearing at the appointed time and place, yet neither Emmons nor anyone acting on his behalf appeared. Furthermore, no one had heard from Emmons. 6. After waiting fifteen (15) minutes after the designated start-time for the hearing, neither Emmons nor anyone acting on his behalf had been heard from. 7. Thereafter, the ALJ called the hearing to order, and ECUA proffered witness testimony and admitted exhibits into the record. The record established the following: a. Emmons was a Residential Services Supervisor in ECUA’s Sanitation Department. b. On March 28, 2012 Emmons was notified by a Sanitation Equipment Operator under his supervision that his truck (Truck #43B), had broken down. After Emmons arrived on the scene in ECUA Truck #11C, he went to sleep while on duty. c. Emmons slept for approximately twenty to thirty minutes, and his vehicle, Vehicle #11C, was idling with the air conditioner on throughout this time. d. While Emmons slept, an ECUA employee photographed him. e. This was not the first time Emmons had slept while on duty; instead, in the Summer of 2011 Emmons was observed sleeping in his ECUA-assigned vehicle by another ECUA employee. f. Furthermore, within the past twelve months Emmons was observed by ECUA employees reclined with his eyes closed for an extended period of time on two other occasions during the past twelve months. g. Additionally, in 2010 a photograph of Emmons apparently sleeping on duty was brought to one of his superiors’ attention. In this instance, Emmons was cautioned that it was completely unacceptable for a supervisor to be sleeping anywhere 3 at any time while on duty and that if this were to happen again disciplinary action would be imposed. h. ECUA issued a written notice of predetermination hearing to Emmons on August 21, 2012 regarding contemplated disciplinary action for violations of Section B-13A(4), [Conduct Unbecoming an ECUA Employee], Section B-13A(18) [Loafing], Section B-13A(21) [Neglect of Duty], Section B-13A(25) [Sleeping on Duty], and Section B-13A(33) [Violation of ECUA rules or policies] of ECUA’s Human Resources Manual. i. Section B-37(A) of ECUA’s Human Resources Manual additionally provides that ECUA employees shall avoid unnecessary vehicle idling and prohibits allowing a vehicle to idle solely to operate the air conditioner for the comfort of the vehicle’s occupants. j.._ Emmons knew of the above-referenced provisions of ECUA’s Human Resources Manual by virtue of the fact that he had received it, as well as the fact that the substantive provisions of it applicable to his sleeping on duty had been previously discussed with at least one of his superiors. k. Upon proper notice a predetermination hearing was held on August 24, 2012, and thereafter a written notice of disciplinary action was issued to Emmons on August 27, 2012 notifying him that his conduct violated Sections B-13A(4), (18), (21), (25), and (33) of ECUA’s Human Resources Manual. 8. The hearing was closed at approximately 10:27 a.m. 9. Based upon a review of the record, the evidence shows that Emmons’ conduct was violative of Sections B-13A(4) [conduct unbecoming an ECUA employee], 4 Section B-13A(8) [loafing], Section B-13A(21) [neglect of duty], Section B-13A(25) (sleeping while on duty], Section B-13A(33) [violation of ECUA rules or policies], and Section B-37 [vehicle and equipment idle reduction] of ECUA’s Human Resources Manual. (See ECUA ex. 5, 6). The evidence further shows that you were aware of these provisions within the Human Resources Manual. (See ECUA ex. 7). 10. Two days later, on September 17, 2012, R. John Westberry, Esq., entered an appearance on behalf of Emmons and filed a Notice of Voluntary Dismissal on his behalf. In neither of these filings was any justification proffered for Emmons’ having failed to appear at the scheduled evidentiary hearing. Additionally, good cause was not shown for Emmons’ attorney having failed to appear at the hearing (although it is unclear whether the attorney had been retained at that time). 1. Nevertheless, on October 18, 2012 the ALJ rendered an Order Closing File ostensibly dismissing the matter.
Conclusions Petitioner, Emerald Coast Utilities Authority (hereinafter either "ECUA" or “Petitioner”), terminated Respondent, Michael A. Emmons (hereinafter either "Emmons" or “Respondent”), from his employment with ECUA effective at the close of business on August 24, 2012. Emmons timely requested a hearing in order to appeal his termination, and his case was forwarded to Florida Division of Administrative Hearings to conduct a hearing and issue findings of fact and recommended conclusions of law. After being properly noticed, a formal hearing was held in this cause on October 15, 2012 in Pensacola, Florida, before Diane Cleavinger, Administrative Law Judge with the Florida Division of Administrative Hearings, which Emmons elected not to attend. . Three days later, on October 18, 2012, Judge Diane Cleavinger submitted an Order Closing File, which for reasons set forth below is deemed a Recommended Order. Pursuant to Section 120.57(1)(10, Florida Statutes, the Parties had 15 days within which to submit written exceptions to the Recommended Order. That time-frame has expired, with only Petitioner’s having filed a submission. Emmons also filed no response to Petitioner’s exceptions. See Rule 28-106.217(3), Florida Administrative Code (affording a party 10 days from the filing of the other party’s exceptions to respond to those exceptions).
The Issue Whether the City of Milton failed to accept an employment application from Sydney McCray on the basis of race or national origin, thereby committing an unlawful employment practice.
Findings Of Fact The City is an employer under the Florida Civil Rights Act. Mr. McCray is a male African-American, and he is a member of a protected class. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer's position, he and his sister, Alice Larkins, contacted the City Manager's office for the purpose of submitting their employment applications. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race. The City disputes Mr. McCray's claims for several reasons. First, the City provided evidence to contradict Mr. McCray's position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson's office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray. Third, in addition to Mr. Whitson's lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson's personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson's office on April 4, 1994. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of "Laborer" with the Public Works Department of the City of Milton. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin's testimony lacked consistency and lacked credibility. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice. DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997. COPIES FURNISHED: Bruce Committee, Esquire 8870 Thunderbird Drive Pensacola, Florida 32514-5661 Roy V. Andrews, Esquire Post Office Box 586 Milton, Florida 32572 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a software engineer with almost 30 years of experience in the industry. From 2001 until August of 2006, Petitioner was employed by ITT Industries (ITT). Petitioner's employment with ITT came to an end when he was involuntarily terminated. Following his termination, Petitioner filed an employment discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging that ITT had discriminated against him because he suffered from Tourette's syndrome (which caused him to have vocal tics and to stutter). Petitioner did not take any action to pursue these allegations of employment discrimination beyond filing this complaint against ITT with the EEOC. Petitioner has been unable to obtain a "permanent job" as a software engineer since his termination by ITT. Respondent is a defense contractor that "make[s] [military] simulation and training equipment." In early 2008, Respondent was looking to fill a temporary software engineer position. Edge Dynamics was one of the outside employment agencies that Respondent used to assist it in the hiring process. On January 9, 2008, Edge Dynamics provided Petitioner's resume to Edward Kaprocki, a senior principal software engineer with Respondent. Mr. Kaprocki was responsible for interviewing applicants for the position and making hiring/rejection recommendations. After reviewing Petitioner's resume, Mr. Kaprocki "thought [it] looked interesting enough where it would worth talking to [Petitioner]," and he so advised Sandra Asavedo, his "point of contact" at Edge Dynamics. Ms. Asavedo made the necessary arrangements to set up a face-to-face interview between Mr. Kaprocki and Petitioner. The interview took place in Mr. Kaprocki's office on January 14, 2008. It lasted about 45 minutes to an hour. Petitioner seemed to Mr. Kaprocki to be "a little bit nervous," but Petitioner did not do or say anything to cause Mr. Kaprocki to believe that Petitioner suffered from any disability. During the course of the interview, Petitioner showed Mr. Kaprocki his personal website, which contained information about and pictures of "some of the projects that [Petitioner] had worked on." Based on the interview, Mr. Kaprocki determined that Petitioner did not have the skill-set that was needed for the position Respondent was seeking to fill. Immediately following the interview, Mr. Kaprocki went to his supervisor, Steve Preston, whose office was "right down the hall," and recommended that Petitioner not be hired to fill the position. Mr. Kaprocki then telephoned Ms. Asavedo to let her know that Petitioner was not going to be hired so that she could inform Petitioner. Mr. Kaprocki's decision to recommend against hiring Petitioner had nothing to do with Petitioner's suffering from Tourette's syndrome or his having filed an EEOC complaint against ITT. Indeed, at the time he made his decision, Mr. Kaprocki did not even know that Petitioner had Tourette's syndrome or had filed an EEOC complaint against ITT. Mr. Kaprocki first learned of these matters only after Petitioner had filed his Complaint in the instant case. After being told that he would not be hired for the position, Petitioner telephoned Mr. Kaprocki several times, pleading with Mr. Kaprocki to "reconsider hiring him." Mr. Kaprocki told Petitioner "that the decision had been made" and would not be reconsidered. Mr. Kaprocki felt that Petitioner, by making these telephone calls, was "badgering and harassing him." To satisfy his own personal curiosity (and for no other reason), Mr. Kaprocki looked online to find out more about the person who was subjecting him to this "badgering and harass[ment]."2 Mr. Kaprocki did not discover, as a result of his online search, that Petitioner had Tourette's syndrome or that Petitioner had filed an EEOC complaint against ITT. His search, however, did reveal certain comments Petitioner had made in an online forum that Mr. Kaprocki considered to be "extremely unprofessional." After reading these comments, Mr. Kaprocki was even more confident than he had been before he began his search that he had made the right decision in not recommending Petitioner for employment. Petitioner was never offered a position with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of any unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of May, 2009.
The Issue The issue in this case is whether the Respondent has committed the violations as charged.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. In July 2008, Respondent was hired by Petitioner as a sanitation equipment operator. At the time, Respondent was given a copy of the employee handbook. Receipt of this document was acknowledged by Respondent. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resources Policy Manual. The July 16, 2010 letter, which informed Petitioner of his termination, cited to the following provisions of the Human Resources Policy Manual, which state as follows: Section F-4 Disciplinary Offenses * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee's effectiveness as an ECUA employee, or that adversely affects the employee's ability to continue to perform their job, or which adversely affects the ECUA's ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a "conduct unbecoming an ECUA employee" offense determines the appropriate penalty. Further, the repetition of the same or similar conduct may lead to progressive discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of and failure to take corrective action or report rule violations and employee misconduct. The termination letter concluded that the facts and circumstances surrounding Respondent's conviction of a third- degree felony constitute a violation of the above-quoted provisions. On November 30, 2009, Respondent was arrested and charged with 1) "sexual assault/sexual battery, victim over 12 years of age, physical force"; and 2) "cruelty toward child abuse without great harm." On June 16, 2010, the State filed a nolle prosequi regarding the first charge of sexual assault/sexual battery, victim over 12 years of age, physical force. Thus, this charge was dropped, resulting in no conviction of this charge. Also on June 16, 2010, Respondent pled nolo contendere/no contest to the second charge of cruelty toward child abuse without great harm. This plea resulted in a conviction of this charge, which is a third-degree felony. The court placed Respondent on probation for three years. Ronald Ross is a deputy with the Escambia County Sheriff's Office. In October 2009, Deputy Ross worked in the special victims unit concerning crimes of a sexual nature against children and the elderly. Deputy Ross interviewed Respondent on October 30, 2009, regarding the incident that led to criminal charges being filed. At the time of the interview, Respondent was not under arrest. The interview took a little over an hour. During the interview, Deputy Ross described the allegations: that Respondent touched and fondled the breast and vaginal area of a 16-year old victim; that his finger penetrated the victim's vagina; and that Respondent exposed his penis to the victim. According to Deputy Ross, Respondent initially denied all of the allegations, but, as the interview went on, he admitted to some of the allegations. That is, Respondent admitted to touching the girl, denied exposing himself, and asserted that the girl was a willing participant in the encounter. Despite Respondent's initial reluctance to admit to the offense, Deputy Ross described Respondent as very cooperative during the interview. At hearing, Respondent did not wish to discuss the specific facts and circumstances of the incident in detail, which is his right. He insists, however, that he was not looking for trouble, that the "young lady" approached him, and that he pled out only because he did not have the financial resources to pay his attorney to go to trial. Despite the above, Respondent is remorseful for his actions. Respondent is concerned that the investigation of this incident conducted by ECUA was not complete. In particular, he is concerned that ECUA relied only on the Deputy's investigative interview of him, and did not review depositions in the court file that led to the prosecutor dropping the more serious charge. He also questions whether he is the only ECUA employee with a third-degree felony who was fired. There is no evidence in the record to establish whether Respondent was treated any differently than other employees who were convicted of offenses of the same category, i.e., third degree felonies. Respondent had a felony conviction prior to becoming employed by ECUA. In 2000, Respondent was convicted of a drug conspiracy charge and served a prison sentence for that crime. He disclosed his criminal background to ECUA when he was hired. Randall Rudd is the Sanitation Director for ECUA. He was aware of Respondent's prior conviction, but despite this, made the decision to hire Respondent in 2008. When Mr. Rudd learned of Respondent's 2010 conviction, he became concerned that this conviction could have an impact on Respondent's job. Specifically, Respondent was assigned yard trash collection. This involved regular interaction with the public, in that customers regularly ask questions of the sanitation operator, and the driver is often the only employee on the truck. In addition to the conviction itself, Mr. Rudd was concerned about the nature of the offense, Respondent's contact with the public, how the public might view ECUA, and potential liability to ECUA. Mr. Rudd acknowledged that Respondent was a good employee who never had any problems dealing with the public, and that his decision to terminate Respondent was not an issue of job performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (4) and (33) and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resource Policy Manual. DONE AND ENTERED this 4th day of November, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Ron E. Williams 7041 Andros Drive Pensacola, Florida 32506 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
The Issue The issue in this case is whether Respondent has violated the personnel policy established by Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Approximately 20 years ago, Respondent was hired by Petitioner as a sanitation equipment operator. At some point in time, Respondent was given a copy of the employee handbook. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resources Policy Manual. The manual is available to all employees. Both documents provide for the discipline of employees. The Human Resources Policy Manual, states as follows: Section F-4 Disciplinary Offenses * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee's effectiveness as an ECUA employee, or that adversely affects the employee's ability to continue to perform their job, or which adversely affects the ECUA's ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a "conduct unbecoming an ECUA employee" offense determines the appropriate penalty. Further, the repetition of the same or similar conduct may lead to progressive discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * (16) Insubordination An employee's unwillingness or deliberate refusal to comply with a direct order, directive, or instruction of the immediate or higher-level supervisor whether in writing or orally communicated. Insubordination also includes an expressed refusal to obey a proper order, as well as, willful or direct failure to do an assigned job or follow orders. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Insubordination is a serious offense. (28) Threatening and/or Abusive Language The use of language which is threatening or abusive, whether directed toward a supervisor, other employees, or the public. Includes offensive language, whether or not directed toward anyone in particular and regardless of intent. On November 19, 2010, Respondent arrived at work around 5:00 a.m. He entered the sanitation department’s cafeteria. The department's time clock is located in the cafeteria. At the time, the cafeteria was noisy with a number of employees in the room. Another department co-worker who knew Respondent, Ronnie Prim, was clocking in at the time clock. Both Mr. Prim and Respondent are black. Respondent said hello to his supervisor and got in line to clock in behind Mr. Prim. The supervisor's desk was located about 10 to 15 feet away from the area of the time clock. Notably, because of the noise and the fact that other employees were involved in other things, there were no independent witnesses to the entire interaction between Mr. Prim and Respondent. Likewise, there were no independent witnesses to the entire conversation between the two men. The entire incident lasted about 5 minutes. After clocking in, Mr. Prim turned and saw Respondent and said good morning. Respondent did not respond to Mr. Prim’s greeting. Mr. Prim responded with words like “What? You are not going to talk to me?” Respondent denies becoming angry. However, all of the independent witnesses to the incident and the better evidence demonstrated that Respondent became angry and indicated to Mr. Prim that he should not talk to him. He called Mr. Prim "boy." Other witness testimony differed on the number of times that Respondent called Mr. Prim "boy." However, the better evidence was that the reference was made at least two to three times by Respondent. Respondent testified that he did not intend the word “boy” to be offensive. However, use of the term "boy" towards a black man is generally considered offensive. In fact, Mr. Prim was insulted at being called "boy" and became angry at the reference and Respondent's attitude. Given these facts, Respondent is guilty of using offensive language towards a co- worker in violation of Section F-4(4), Conduct Unbecoming an Employee and Section F-4(28), Threatening and/or Abusive Language. Thereafter, Respondent indicated to Mr. Prim that "they could settle this in the street" or "we can handle (settle) this after work." Shortly afterwards, Respondent left the cafeteria. However, the evidence was not clear whether Respondent was escalating the argument or was trying to calm the situation down by his statement. Respondent's testimony was that he was trying to calm the situation down and walk away. Independent witnesses disagreed on what was said and the meaning of the statement. Given the conflict and the short duration of the incident, the evidence did not demonstrate that Respondent escalated the incident with Mr. Prim before he left the cafeteria. Moreover, the overall seriousness of the incident was moderately low given the short duration of the incident and the fact that only a few derogatory words were involved. Respondent's supervisor overheard the term 'boy' and saw that the "conversation was not good." From about 10 to 15 feet away, he instructed Respondent to "go on to work." During the incident, the supervisor instructed Respondent to "go to work" about 3 times. Respondent gave no indication that he heard his supervisor's instructions. Indeed, the better evidence was that Respondent did not hear his supervisor's instructions since Respondent has significantly impaired hearing and poor word recognition in his right ear. Additionally, another coworker, who was at a table approximately five feet away, could only hear pieces of the conversation between Respondent and Mr. Prim. Given that Respondent did not hear his supervisor's instruction and was therefore unaware of that instruction, he did not fail or refuse to follow a direct order of his supervisor and is not guilty of insubordination As an employee, Respondent received a written reprimand on April 22, 2010. The reprimand was for his use of profanity and refusal to follow a direct order of his supervisor in violation of Sections F-4(4), (7) and (16) of the ECUA Human Resource Policy Manual. The only similarity between the April offense and the present offense was the use of different derogatory terms.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utilities Authority find that Respondent violated its Human Resource Policies F-4(4) and (28), and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resource Policy Manual. DONE AND ENTERED this 21st day of March, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2011. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Michael J. Edler 801 West Baars Street Pensacola, Florida 32501 Ryan Barnett, Esquire Whibbs & Stone 801 Romana Street, Unit C Pensacola, Florida 32502 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
The Issue Has Respondent committed an "unlawful employment practice" against Petitioner, pursuant to Chapter 760, Florida Statutes, based upon a Petition for Relief dated October 13, 1997, referred to the Division of Administrative Hearings by the Florida Commission on Human Relations?
Findings Of Fact Respondent stipulated to jurisdiction, and the evidence demonstrates that by number of employees, Respondent is an "employer" as defined in Chapter 760, Florida Statutes. Respondent is a freight company which ships and receives living nursery stock by truck through a depot/warehouse. Petitioner was employed there from 1993 until June 16, 1995. In the course of formal hearing, Petitioner waived his Charge of Discrimination on the basis of his national origin (United States citizen). (TR-116). There is no evidence the Respondent employs anyone other than United States citizens. The remainder of Petitioner's allegations were that Respondent failed to accommodate one or more handicaps and subjected Petitioner to disparate treatment from similarly situated black employees. Petitioner also related a series of remarks and one personnel action that he considered to be harassing and abusive due to his handicaps. The "handicaps" that Petitioner testified to were high blood pressure, an undefined heart condition requiring medication, "bad knees," and problems with his back. At formal hearing, no medical physician or health care professional corroborated the foregoing conditions. However, it is undisputed that on or about January 9, 1995, Petitioner presented a physician's excuse to Respondent's Warehouse Supervisor, Jeff Bradner. That physician's excuse stated that Petitioner could return to work on that date, working 10 hours per day, 5 days per week, doing medium lifting, that is, "lifting 30 pounds and frequently lifting and/or carrying objects weighing 25 pounds." The excuse further stated that Petitioner was to avoid squatting, kneeling, and climbing. Mr. Bradner informed Eddie Payne, Petitioner's immediate supervisor, that the foregoing January 9, 1995, medical restrictions were to be observed for Petitioner. Attached to both Petitioner's initial Charge of Discrimination and his later Petition for Review was another physician's letter dated January 29, 1993. It stated, in pertinent part: [Petitioner], patient of record, suffers from high blood pressure, anxiety, and arterial coronary disease. These conditions are aggravated by the stress caused by problems he has with his teenage son. Also attached was a March 3, 1994, doctor's letter stating that Petitioner had a spine and knee injury. It contains the same restrictions as the January 9, 1995, letter. Because the 1993 and 1994 letters are part of the record herein, (attached to the Charge of Discrimination and Petition for Relief), I have taken official recognition thereof and find that they supplement or explain Petitioner's oral testimony at formal hearing to the effect that Petitioner was suffering from high blood pressure, anxiety, and arterial coronary disease in 1993, and from a knee injury in 1994. However, these letters were not introduced in evidence at formal hearing, and Petitioner did not testify that he ever presented any such written medical confirmations of these conditions to any of Respondent Employer's supervisory personnel. Mr. Payne and Mr. Bradner denied that any oral or written requests for accommodation had been received from Petitioner other than the January 9, 1995, doctor's excuse listing specific restrictions. Contrary to Petitioner's testimony, Mr. Payne denied knowing of Petitioner's heart condition. There also is no corroboration of Petitioner's testimony that he orally requested any accommodation specifically because of his high blood pressure or heart condition at any material time. Furthermore, and most importantly, the 1993 letter places no restrictions on Petitioner in the workplace, and the 1994 letter imposes the same restrictions as the 1995 letter, which is in evidence. The only medical condition any of his co-workers ever heard Petitioner complain about was his "bad knees." Upon the record as a whole, it is inferred that Eddie Payne also knew Petitioner complained of "bad knees." At all times material, both before January 9, 1995, and afterwards, Petitioner worked for Respondent as a "checker." Checkers have the most physically non-taxing job in Respondent's operation. They make sure that "wheelers" or "loaders" place unloaded freight on pallets in the correct location in the warehouse and that "loaders" load the correct freight from the warehouse or warehouse dock into the correct truck. In this capacity, the bulk of Petitioner's work was carrying a clipboard, making notations thereon, and orally directing others where to put boxes. Petitioner testified that due to his blood pressure and back condition, he "needed" to sit down for 15 minutes' rest every 20 minutes after January 9, 1995. The evidence as a whole does not indicate that Petitioner clearly enunciated this "need" to any supervisor. Moreover, the credible evidence supports the inference that no one could work effectively as a checker while taking 15 minute breaks as frequently as every 20 minutes, because each truck needed to be loaded or unloaded as a component, so as to avoid shipping errors. Therefore, substituting other checkers every 20 minutes would have adversely affected Respondent's business and would constitute an unreasonable accommodation for Petitioner and undue hardship for the Employer. Either substituting another checker or waiting on Petitioner to rest every 20 minutes would have been unduly costly, burdensome, or substantially disruptive and would have altered the nature of Respondent's business. Prior to January 9, 1995, Petitioner worked at least a 40-50 hour week and was paid by the number of hours he worked. Due to the nature of Respondent's business and the hours when freight was received, Petitioner's usual hours before January 9, 1995, were from approximately 4:00-4:30 p.m. until 9:30 a.m. (17- 18 hours) three days a week, mostly Monday, Tuesday and Thursday. At all times material, both before and after January 9, 1995, only twenty-five percent as much freight came in on Wednesdays and Fridays as came in on the other three work days of each week. Therefore, all employees were not needed for a 17-18 hour day on those days, and employees had the option of working at whatever was available on those days to "make their hours" for pay purposes. At all times material, on Wednesdays and Fridays, all employees who wanted to work took turns digging weeds out of the cracks in the Respondent's paved parking lot with a claw on a broom handle or the edge of a shovel; picking the weeds up with a shovel; and throwing them away. Sometimes a blower was used. In accord with the January 9, 1995, physician's written restrictions, Eddie Payne accommodated Petitioner by assigning him to work from 10:00 p.m. until 8:00 a.m., so that Petitioner would only be working 10 hours per day. This assignment had Petitioner working the hours during which the employer needed the most men because those were the hours when the workload was the heaviest. Petitioner complained because Mr. Payne would not let him work his 10 hours from 4:30 p.m. to 2:30 a.m., a less busy time, but he complained only because those hours were more convenient for him. Petitioner related that after January 9, 1995, he was made to lift more than 30 pounds of parking lot weeds at a time, with the shovel, after getting on his hands and knees to dig the weeds out, and always in the hot sun, which aggravated his undisclosed heart condition. He also related that he never got to use the blower like other employees. His testimony on this issue is not credible in light of the contrary testimony of all the other witnesses. Even if credible, Petitioner was not forced to do this work. He was permitted to do this "make work" during slow days so that he would earn at least 40 hours per week. Witnesses confirmed that another "make work" project on a single occasion was digging muck out of a ditch. Petitioner testified that he was required to dig more than 30 pounds of muck in each shovelful that he lifted out of the ditch. His description was neither corroborated or refuted, but again, Petitioner was the one who controlled the content of each shovel, and he could have declined to work at that "make work" project. According to Petitioner's time cards, from which information Petitioner received his pay, Petitioner usually worked only 10 hours or less per day after January 9, 1995. Occasionally, he worked more than 10 hours, but less than 11 hours per day. Petitioner and Eddie Payne were fishing buddies outside of work, and on at least one occasion, Eddie Payne treated his subordinates, including Petitioner, to a night-clubbing expedition. Petitioner asserted that on the job, Eddie Payne had used derogatory and profane language to him, on account of his handicaps. Once, when Petitioner wanted to punch-out early, Mr. Payne supposedly said, "Go home if you need to, you crippled old pussy." Once, Mr. Payne allegedly called Petitioner "a crippled old Mother F-----." Mr. Payne denied ever using such language either socially or on the job. Mr. Bradner testified that he had instructed his subordinates against profanity on the job, and related that Mr. Payne had a reputation for not using profanity. No other witness corroborated Petitioner's testimony that any such language had ever been addressed to Petitioner. Petitioner called Matthew Hickox, a co-employee, as a witness. Mr. Hickox related that Petitioner would often "act goofy," by doing a "Quasimodo imitation," twisting his arm, making a face, and dragging one leg behind him. When Petitioner did this, other employees would "make cracks." Petitioner claimed that dragging his leg behind him was evidence of his handicap. Mr. Hickox's opinion was that "disabled don't give you the right to act like a nut and then people not make some comment." Petitioner testified that he had only become entirely disabled since leaving Respondent's employ June 16, 1995. Although Petitioner moved slowly and evidenced pain on rising and sitting, he was able to move around and approach the witness stand at formal hearing. The undersigned observed no twisted arm, facial contortions, or dragging leg. It is inferred from observing the candor and demeanor of all the witnesses, including Petitioner, and from the whole of the evidence, but particularly from Mr. Hickox's testimony, that on such occasions as Petitioner performed his imitation on the job, Mr. Payne or Mr. Bradner may have vehemently ordered Petitioner back to work and warned him to cut out the horseplay. Petitioner claimed to have received only a fifteen-cent per hour raise when other employees received more. According to Petitioner, the other employees, including Mr. Gonzalez, were raised by twenty-five cents per quarter hour for a $1.00 per hour raise. What anyone was being paid before this raise is not in evidence. Since no evidence indicates whether this raise occurred before or after January 9, 1995, when Respondent's management clearly knew of any of Petitioner's restrictions, there was no nexus between the lack of raise and handicap discrimination.2 Petitioner also developed no nexus between this raise and racial discrimination. According to Eddie Payne, Petitioner was a sub-average worker. According to Eddie Payne and Jeff Bradner, they frequently had to instruct Petitioner to resume work. Mr. Bradner related an incident when Petitioner was leaning on a shovel in the parking lot, so Mr. Bradner sarcastically commented, "You're not getting much work done leaning on that shovel," but this motivational comment was not directed at a handicap. No employee testified that any supervisor's instructions to Petitioner, which they observed or overheard, were offensive or otherwise inappropriate. On one occasion, Petitioner was told by Mr. Bradner to stop kicking a "basketball of tape" around; throw it away; and get back to work. No employee other than Petitioner found this instruction offensive. On another occasion, Petitioner was given a written reprimand when a truckload of freight was sent to the wrong location. Petitioner attributed the error to a black "loader" named James Oliver and perceived the reprimand as discriminatory because Mr. Oliver was not reprimanded. Petitioner's superiors reprimanded Petitioner as a formal personnel action instead of Mr. Oliver because they considered Petitioner responsible for the error and resultant costs since Petitioner was in the superior position of checker. Petitioner suffered no loss of pay, hours, or seniority as a result of the reprimand. Petitioner's assertions that he was required to climb tall ladders to change light bulbs in the warehouse, to squat to lift boxes, and to kneel to pull weeds were denied by management witnesses and uncorroborated by Petitioner's witnesses. On one occasion, Petitioner had just come on duty and was having a coke and a cigarette, when Mr. Bradner told him to get to work helping a black loader named "Willie T." unload a truck. On this single occasion, Petitioner may have been asked to lift boxes in excess of 30 pounds, but the boxes also may have weighed as little as 20 pounds. This incident may have occurred before Mr. Bradner knew of Petitioner's medical restrictions on January 9, 1995, but it was probably afterwards. If so, this single incident was contrary to Petitioner's doctor's instructions, but Petitioner admittedly never complained to Mr. Bradner about this one-time incident in terms of "lack of accommodation" for his physical limitations. On the same occasion, Willie T., who already had been loading the truck for three hours, took a coke and cigarette break a half an hour after Petitioner began to help him unload the truck. Willie T. asked Petitioner to join him on his break, which Petitioner did. Mr. Bradner spotted them and instructed Petitioner to return to loading the truck because he felt Petitioner was not entitled to a break after only a half an hour of work, but did feel that Willie T. was entitled to a break after three full hours of work. This was a bona fide business consideration of Respondent. Petitioner failed to establish a nexus of racially discriminatory intent on the basis of this incident. On June 16, 1995, Petitioner was sweeping the warehouse floor, leaving trails of residue behind. Petitioner intended to go back and sweep up the residue, but before he could do so, Mr. Bradner told him that he was leaving trails and that he should do a better job. Petitioner considered this instruction to be demeaning and discriminatory, but he did not reply to Mr. Bradner. Mr. Bradner noted that Petitioner began to do a better job of sweeping, and Mr. Bradner left the area. Petitioner perceived that his co-workers were laughing at the incident and became upset. Petitioner finished sweeping one section of the warehouse and asked Eddie Payne if he could clock-out. He assumed that Eddie Payne knew he was upset because of Mr. Bradner's comment but did not tell him so. Eddie Payne authorized Petitioner to clock-out. Petitioner clocked-out and never returned to work for Respondent
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order denying and dismissing the Petition for Relief on all issues. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
