The Issue Whether the Florida Commission on Human Relations (FCHR) correctly determined that it lacks subject matter jurisdiction over Petitioner’s claim of unlawful employment discrimination because the complaint was received more than 365 days after the date of the alleged violation?
Findings Of Fact AAR Corp. (AAR) is an aviation support company which provides maintenance, repair, and overhaul services to air carriers at various facilities through the United States. AAR uses its own employees in addition to utilizing employees from its temporary staffing company, AMS. When AAR’s business increases, it increases its workforce by adding workers from AMS. When AAR experiences a downturn in business, it similarly reduces its workforce, typically, by reducing workers from AMS through layoffs. Business is usually slow for AAR and AMS during the peak airline travel times, including summer and the winter holidays. Business of AAR and AMS is also affected by AAR's contracts with major airline carriers for scheduled and non-scheduled maintenance to aircraft. Magri was hired by AMS on October 27, 2011, as a Sheet Metal mechanic at the AAR Miami International Airport facility. She began work January 16, 2012, and at all times material hereto, worked as an Interior Mechanic for AMS. Magri's last day physically working for AMS was October 10, 2013. In 2013, Pedro Estrada (Estrada) became Magri's immediate supervisor. According to Magri, Estrada frequently subjected Magri to sexual jokes, graphic comments about her body, and requests for sexual favors.2/ At the end of September or beginning of October 2013, Estrada came up behind Magri and placed his penis against her buttocks in a sexual manner. Shortly after making a sexual harassment complaint about her supervisor in September 2013, Magri was given a disciplinary memo for poor performance on October 4, 2013. Although there is no prior record of written discipline against Magri, this memo notified her that this was a "final warning" and any future violations could result in termination. On October 10, 2013, Magri was sent home by her then immediate supervisor, Plamen Ilonov (Ilonov), Manager of Interior, allegedly due to a lack of work. Approximately eight other AMS workers were laid off for the same reason on that date. AMS employees were aware of a likely work slowdown at that time because US Airways cancelled its contract with AAR in the fall of 2013 due to US Airways impending merger with American Airlines. However, neither Magri, nor her co-workers, were told by Human Resources or their supervisors, the anticipated duration of the layoff. In fact, it was common practice for AMS employees to be laid off and then returned to work within a week to a month due to the workflow fluctuations. This happened to Magri for a month in 2012. Laid off employees, including Magri, were directed to regularly call or text their supervisor to see when work was available. AMS had no system of notifying employees whether a layoff would be long or short term. When a layoff was anticipated to be long term, the AMS worker was removed from the Human Resources payroll system and internal paperwork was generated indicating termination, however, the employee was not notified of their status other than "lay off." At the time of an anticipated long-term layoff, the AMS Human Resources Department also deactivated the worker's security badge that would provide access to the facility. However, the employee was not asked to return the badge, nor was the employee advised that the badge was inactive. When she was sent home on October 10, Magri was instructed by Ilonov to check with him regarding when she might be returned to the work schedule. At this time she was not aware a decision was made that she would likely be laid off more than a month. For the next two weeks, Magri called and sent text messages to Ilonov looking for clarification as to when she might be returned to work. Magri sent a text message to Ilonov on October 11 asking "Why me." Ilonov responded that 10 people were affected, not just Magri. Magri asked, "Plamen do you think its [sic] layoff will take long time?" On October 12, after receiving no response, Magri texted Ilonov, "Good morning, Plamen, do you think I have to take out my tool box?" Ilonov replied, "Good morning, it is possible. I don't see much next 2-3 months." In a telephone conversation this same week, Ilonov indicated to Magri that work might be available October 21 if United Airlines planes arrived for service. Based on this, Magri had a legitimate expectation that she would be returned to the schedule. On October 20, Magri sent a text to Ilonov stating, "Do you don't [sic] know how long? I'm very scared without work." Ilonov did not reply. During this week, several employees were called to return to work. Ilonov did not return Magri to work because he only called back those he considered his "best" workers. On October 24, Magri sent several text messages to Ilonov seeking an explanation of when she might return to work or why she wasn't called back. Ilonov responded that he was calling whoever he thought he needed, and "We are really slowing down, and soon more changes." On October 25, Magri went to the facility to speak directly with Ilonov. During this meeting he made it clear to Magri for the first time that it was not his decision whether to put her back on the schedule, and that he did not think the "higher ups" wanted her to return. He told her he could not tell her anything further and that she would need to contact the Maintenance Manager, Luiz Gonzalez (Gonzalez). This was the first time Magri realized that this would not be a short-term layoff. At some point shortly thereafter, Magri spoke to Gonzalez by telephone, who told her she needed to look for alternative employment. Respondent maintains two conflicting factual assertions. Respondent contends the decision to terminate Magri's employment was made on October 10, 2013, as evidenced by its internal removal of Magri from the payroll system and the deactivation of her employee security badge (neither of which Magri was aware). Alternatively, Respondent claims there was no decision to terminate Magri and that she remains eligible for rehire. Regardless of whether Magri's separation from employment was a termination or long-term layoff, the earliest Magri knew or should have known that she suffered adverse action was October 24, 2013, when she became aware that although some of her co-workers were being immediately called back to work, she was not. Accordingly, Magri's charge, filed on October 16, 2014, which is 357 days from the alleged violation, was timely with regard to her claim of sex discrimination and retaliation arising from her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations decline jurisdiction of Petitioner's charge of sexual harassment, which allegedly occurred prior to October 10, 2013, and take jurisdiction of Petitioner's charge of sex discrimination and retaliation arising from her separation from employment on October 24, 2013. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2016.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 10, 2004.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from May 2003, until July 29, 2004. Respondent, Sacred Heart Health Systems, operates a charitable, not for profit acute care hospital in Pensacola called Sacred Heart Hospital. While employed at Sacred Heart Hospital, Petitioner was a call center resource agent. His supervisor was Jane Nix. During cross-examination, Petitioner responded as follows when asked whether Respondent had discriminated against him on the basis of race: Q: And is it fair to say that you truly believe that Sacred Heart did not discriminate against you because of your race at any time during your employment? A: Yes, it is. Q: And is it also true that Ms. Nicks [sic] did not discriminate against you because of your race at any time during your employment at Sacred Heart Hospital? A: No, sir, she did not. Q: Okay. Your race was never an issue at any time during your employment at Sacred Heart Hospital? A: Not to my knowledge, no sir. Q: You also never complained of discrimination based on race at any time during your employment at Sacred Heart Hospital; is that correct? A: This is correct. Q: And no one at Sacred Heart ever retaliated against you because of your race? A: Not because of race, no sir. Q: And you know this because you would not allow anybody to discriminate against you because of your race; is that correct? A: This is correct. Q: Or retaliate against you because of your race? A: This is correct. Q: And you do not believe that Sacred Heart violated the Florida Civil Rights Act; is that correct? A: No, sir, I do not. Q: And you do not believe that Sacred Heart violated the Florida Civil Rights Act; is that correct? A: No, sir, I do not. Q: And you do not believe that Ms. Nicks (sic) violated the Florida Civil Rights Act; is that correct? A: No sir, I do not. By his own admission, Petitioner does not allege discrimination or retaliation by Respondent on the basis of race.
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 for lack of jurisdiction. DONE AND ENTERED this 11th day of July, 2005, in Tallahassee, Leon County, Florida. 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 11th day of July, 2005.
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 31st day of July, 2017.
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, 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 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Findings Of Fact On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform generally the same type of duties in that department’s sanitation division. An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of means that the employee meets task requirements. A rating of means the employee exceeds standards. Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences. During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications. Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities. While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City. For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens. Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division. In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications. Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews. Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male. Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position. During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics. During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position. Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative Specialist III position, Ms. McReynolds testified: Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”? A. Anyone can be taught to do payroll. Q. Right. A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers. And I needed a nice person, a person who is going to be able to, when they get yelled at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for. After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally. Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified. In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited. After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews. After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues. Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.” Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position. Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test. Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position. A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position. Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division. Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position. Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive. Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position. The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job. In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
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 Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 28th day of December, 2018.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on December 8, 2014.
Findings Of Fact Respondent has a corporate policy that prohibits its employees from engaging in acts of discrimination, harassment and retaliation. The policy provides, in part, as follows: Discrimination Resort Travel & XChange prohibits discrimination against its employees, applicants for employment, and customers on the basis of a person’s gender, ethnicity, race, color, creed, religion, sexual orientation, national origin, age, disability, marital status, military service or veteran status or any other classification protected by applicable law. Specifically with regard to its employees and job applicants, Resort Travel & XChange does not tolerate discrimination on the basis of the foregoing characteristics with respect to the terms and conditions of employment. Retaliation Resort Travel & XChange does not tolerate any form of retaliation taken against an employee who, in good faith, makes a complaint of discrimination or harassment under this policy, opposes such discrimination or harassment, or participates in an investigation of alleged discrimination or harassment. Anyone who engages in such retaliatory behavior will be subject to appropriate discipline, up to and including termination. Petitioner was hired by Respondent in March 2014 to work as an “Instructional Design & Delivery Trainer.” The written position description includes the following summary statement: [An] Instructional Design & Delivery Trainer plays an important role in making their companies more competitive by developing the skills of the workforce. They help to accelerate organizational change by developing the skills a company requires if it plans to enter new markets or needs to transform its business performance. Companies with a reputation for developing people also find it easier to recruit and retain high-caliber employees. Among the key competencies are the ability to design and deliver training, manage the learning function, measure and evaluate the results of training, and manage organizational knowledge. According to Pamela Price, Petitioner’s immediate supervisor during his term of employment with Respondent, Petitioner’s “responsibilities would have been to create, design, develop step-by-step institutional training manuals and modules, and perform classroom training of that content to new hires, as well as continuing education courses, [and] [t]o perform analytical assessments of training class participants to see at what level they were learning.” The cornerstone of Petitioner’s gender discrimination claim is his allegation that Ms. Price, on multiple occasions, made statements to Petitioner about a female worker from one of her previous jobs that performed better than Petitioner when assigned similar tasks. Petitioner offered no evidence, other than cryptic self-serving statements and conclusory allegations, which supports his allegation that Ms. Price treated him differently because of his gender. On or about September 19, 2014, Petitioner received from Ms. Price his initial six-month performance evaluation. Respondent’s employee performance evaluation rating scale ranges from “marginal” to “outstanding.” On the initial review, Petitioner received an overall rating of “marginal.” There is no evidence of record that Petitioner suffered a decrease in pay, benefits, or the loss of job-related opportunities as a consequence of having received the marginal performance rating. On or about September 22, 2014, Petitioner sent to Laura Lampkin, Respondent’s director of human resources, his response to the performance evaluation prepared by Ms. Price. In his response, Petitioner states, with respect to Ms. Price, the following: The continued push towards unrealistic deadlines and the refusal to listen or effectively address the needs and concerns expressed creates an unnecessary feeling of duress. Duress is not the inability to handle a fast paced or chaotic environment, as those are environments I thrive within. Duress, as it pertains to this example, is in the feeling to produce regardless of tangible concerns. It is, by nature, the creation of a hostile work environment which should not exist within a professional workplace. Because Petitioner expressed concern about Ms. Price’s behavior creating a “hostile work environment,” Ms. Lampkin, within a day or so of receiving Petitioner’s response, initiated an investigation to determine whether Ms. Price was in violation of Respondent’s anti-discrimination, harassment and retaliation policy. At no time prior to receiving his performance evaluation did Petitioner complain about Ms. Price creating a work environment charged with discriminatory animus. Pursuant to Ms. Lampkin’s investigation, Petitioner, in support of his allegation of the existence of a hostile work environment, informed Ms. Lampkin on September 30, 2014, of the following with respect to Ms. Price: There are a good number of situations which lend themselves to an environment that promotes an air of uncertainty, insecurity – as well as the feeling of being bullied. There is [sic] also interactions and conversations, for example when Pam refers to her co-workers or friends at United Healthcare and how they would be able to perform a function that I push back against or when she fails to consider my professional assessments for training and development, which create concerns of inequality or discriminatory undertones. I have often felt, since July, that there is a determination to replace me with a personal contact from United Healthcare – as it has been referenced repeatedly about this ‘trainer’ and what she is ‘capable of.’ To the degree, where at times, I’m given the impression that I should be as capable as this mysterious person. Perhaps, in Pam’s mind I am too young to be an experienced training professional or maybe she would prefer her previous, female, co-worker. Petitioner failed to offer any evidence, credible or otherwise, that in any way supports his allegation that Ms. Price harbored gender-based discriminatory animus towards Petitioner. At the final hearing, Petitioner cross-examined Ms. Price about myriad subjects, none of which involved issues related to gender bias. Furthermore, in his direct testimony, Petitioner stated, in conclusory terms, that Ms. Price “was discriminatory on the basis of gender because she constantly made references to me about how her other trainer at her other job could do it so much easier and I was making things more complicated than they should be.” Petitioner obviously took offense to Ms. Price’s statements, but contrary to Petitioner’s allegations, these alleged statements attributed to Ms. Price do not demonstrate discriminatory animus, but instead indicate a desire by Ms. Price for Petitioner to improve his level of performance. Petitioner alleges that on October 3, 2014, Ms. Lampkin advised him that she had informed Ms. Price of Petitioner’s claim of discrimination. According to Petitioner, Ms. Price, after learning of Petitioner’s claim, retaliated against him as follows: On October 3, 2014, after I was informed by Laura Lampkin that she had spoken to Pam Price about my claims of discrimination, I received a schedule from Pam Price which included radical changes to my standard operating schedule. I was hired as a salaried employee with a 9am-5:30 p.m. schedule with flexibility in my time and freedom to take breaks and lunch as chosen. In the schedule I received from Pam Price, I was now put into an “agents” schedule, each week working a different shift (morning, afternoon and evening) along with scheduled lunch and break times. In addition, they also moved my office onto the call center floor and set me up in a cubicle with the call center agents. When I complained that the schedule change and relocation of my office to the call center floor was a retaliatory action, the schedule was immediately retracted and I was told to revert back to my standard schedule. However, they kept me on the call center floor which was an uncomfortable position and a distraction to the other agents. I also noticed that the contact I had with other employees both in the Asheville and Orlando office changed during that time. I was no longer treated as a member of management, but now I was being treated as if I was a call center agent. When I expressed this concern to another member of our management team . . . , I was informed that there was an unwritten memo going around the Asheville and Orlando office[s] that I was to be treated as if I was an agent. According to Ms. Price, during Petitioner’s first few months of employment with Respondent, his primary responsibility was “learning” about the company. Petitioner was expected to learn about company “[p]rograms, corporate compliance, policies and procedures, introduction to his teammates, understanding their positions and their roles . . . reading materials [and] having conversations.” Ms. Price, in Petitioner’s performance evaluation, was particularly disapproving of Petitioner as it relates to him failing to take advantage of a critical learning opportunity from a member of Respondent’s staff who was sent to Petitioner’s work-site to conduct a five-week training session. According to Ms. Price, Petitioner spent as little as one to two hours a day attending the training sessions when, in her opinion, more of his time should have been allocated to attending the sessions, especially since he was new to the company. In his September 19 and 22, 2014, responses to his performance evaluation, Petitioner complained that he had “not been afforded reasonable time to learn the processes and workflows contained within the products offered,” and that in order “[t]o be a subject matter expert, which is at the core of my position, I must have the complete and full immersion into the workflows and processes that make up the related products to be able to effectively and authoritatively create training documentation and train[ing] processes.” Respondent granted Petitioner’s request for “complete and full immersion.” On October 3, 2014, Respondent implemented Petitioner’s request for complete and full immersion, which resulted, among other things, in Petitioner being assigned work hours consistent with those assigned to agents in the Orlando call center. Literally within minutes2/ of being fully and completely immersed into Respondent’s workflows and processes, Petitioner, at 2:47 p.m. on October 3, 2014, was already complaining about the immersion program, as reflected in the following e-mail exchanges between Petitioner and Laura Lampkin. Petitioner to Laura Lampkin – October 3, 2014, 2:47 p.m. Laura: While I appreciate the attention to detail given to this project for immersion into the RTX Workflow and while I have explicitly stated ‘agent like immersion’ into those workflows, this is a bit above and beyond that expectation. “In order for you to get the full spectrum of calls and types of calls, I have rotated your schedule from the AM shift, Mid-Shift and Late-shift throughout the two month period of time. In addition to your shift start/stop times, you have regularly scheduled breaks and lunch, based on the particular shift you will work for that week. As an example, for the AM shift, first break is generally at 10:00 am, lunch at 12 noon and then second break at 2:00 and so on for each of the shifts. You will have Monday’s off work on the weeks that you are scheduled to work Saturdays to assist with floor coverage due to the upcoming maintenance fee season. I appreciate your assistance with floor coverage during this busy season.” [from Pamela Price to Petitioner]. There is no reasonable, acceptable, logic to Pam’s statement. The type of calls able to be handled by an RTX Exchange Agent do[es] not change throughout the course of a day or shift. There are only so many call types available and those happen, randomly, with every inbound call – regardless of time of day. Pam did mention scheduling me into the workflows, however, that was not the interpretation I expected. I would like to get this project underway without unnecessary complications. I find the radical change to my schedule a retaliatory maneuver. As the Instructional Design and Delivery Manager, my need to be exposed to the call queue and to gain the practical knowledge to speak to the agent experience does not require the coverage of three shifts, nor does it require a deviation from my normal schedule to accommodate an eight hour workday. Even though I will be using this opportunity as a ‘live learning environment,’ and will hold myself to the highest standards in customer care, while being mindful of queue wait times – I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance. I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology. Could you kindly level set the Pam? At this time and until the current investigation is complete, I feel it may behoove all parties involved to have monitored contact. Thank you much. Laura Lampkin to Petitioner – October 3, 2014, 3:28 p.m. Jason, There actually is a logic to your schedule arrangement, and there is a difference in callers in the AM versus the PM. The AM callers do not contain as many sales opportunities, those are more likely to be basic reservations calls. Call volume is higher in the evening, and opportunities for sales are higher in the evening. The logic behind your rotating schedule arrangement is to give you the fullest exposure possible. Given the criticality of immersion in becoming a Subject Matter Expert, the goal is [to] provide you with the best possible opportunities for exposure. This will help in role playing scenarios and variation, which you expressed were much more difficult to train on without full immersion. If the new schedule is a point of contention, we can rework it. I do want you to understand that there was a great deal of thought put into your immersion plan, all centered around what is most beneficial to you and what bests [sic] affords you the chance to become a Subject Matter Expert. With regards to your statement ‘I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology[,] this is technically correct. However, again in the name of immersion and the need to become a Subject Matter Expert, we are arranging temporarily for your work tasks, work environment and product exposure to basically mimic that of an agent for your benefit. Additionally, specific to your statement ‘I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance[,]’ I should clarify that aligning your performance standards with that of an agent is not a main focus. Of course we want you to handle calls properly – and I have no doubt you will – but I do not anticipate any detailed comparison to agents in terms of how the calls are handled. I do believe there will be periodic confirmation of phone time, again not in comparison to agents, but to ensure that the exposure and immersion are occurring. If there are confirmations of phone time, those may be used to determine whether we have fully satisfied our goal of immersion, in terms of exposing you to the phone roles and giving you the needed active time on the phones. I feel I must stress that this immersion plan is driven significantly by your continued emphasis on its importance. I wholeheartedly agree that significant exposure (as you’ve indicated, 4-6 months dedicated time, minimum) to the product and the role is necessary to create training programs and train effectively on most possible scenarios. Because we have yet to arrange dedicated time to immersion for you, and because you’ve indicated it’s critical, we are doing it now. Once the immersion plan is completed, my understanding is that you will be a Subject Matter Expert and capable of training as one. Keeping in mind that maximum exposure has been the goal for your immersion plan and your schedule, I welcome your suggested schedule changes. Thanks. Petitioner to Laura Lampkin – October 3, 2014, 5:07 p.m. Laura: I do appreciate the thoughtfulness put into the plan that I’ve requested. I must say, that from my exposure, I find the majority of inbound calls to contain a sales opportunity and while sales is an important part of our member services and revenue generation, it is not the core of the educational process or training programs expected curriculum. It is certainly necessary to have agent exposure to speak to the experiences and topics that new hires will encounter in production. More so, it is a necessity to explain the ‘how’ and ‘why’ of processes and/or procedures that are expected of an agent. I feel very comfortable in what I have expressed to both Pam and yourself as the requirements for effectively and efficiently learning and understanding the RTX Workflow to a level which is agreeable with the creation of curriculum and the training of such curriculum. The activity of taking live calls, which unfortunately was not available sooner, without interruption, is a requirement. Subject matter expertise is built upon that foundation and will continue to fluctuate until a time comes when the systems and processes used do not change on a consistent basis. As for being held to the same standards as the agent’s in production, I can only speak to what was written and manner in which it was relayed. I stand behind my statements that effective training is necessary before the ability to create, direct or lead a training class or materials. I also stand behind my statements that the schedule change is radical, causes personal conflicts and is not a necessary requirement to achieve the level of immersion and learning that has been requested. For the sake of curiosity, was there a logic to creating a structured ‘agent’ schedule which includes my start, break, lunch and end times? As a salaried employee, I was already under my own direction, likely going to extend my hours and/or utilize unscheduled Saturday’s to afford additional learning time – as I found necessary – due to the estimated time frame I had given to both Pam and yourself by request. This package is wrapped very nicely as a thoughtful contribution to my success, but as a training professional who has interacted with the agent’s and call queue – albeit limited, and with the direct knowledge of what has been lacking in my ability to be fully developed as an employee of RTX, the delivered structure places a burden on my personal needs – which are based around my expected schedule. In addition, a rotation does not deliver nor guarantee delivery of experiences that can’t be extracted from a call within my standard scheduled hours. It would be a great assistance, if we could kindly not alter my schedule and allow me the opportunity I have needed within the confines of what has been established as my schedule expectations for the last six months. Should I find that a knowledge gap exists, I will actively adjust to correct and close such gap. Ms. Price testified as to the accuracy of the matters discussed by Ms. Lampkin in her e-mail reply to Petitioner. Additionally, the undisputed evidence is that Petitioner unilaterally withdrew from the immersion program after having been a part of the same for only two weeks. The evidence is also undisputed that Respondent did not change Petitioner’s pay, benefits, or job-related opportunities as a consequence of Petitioner entering and subsequently leaving the full immersion program. The e-mail exchange between Petitioner and Ms. Lampkin show a number of things, none of which support Petitioner’s claim of retaliation. As an initial matter, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, clearly establishes that Respondent knows its business operations better than Petitioner. Next, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, establishes that Petitioner’s immersion into Respondent’s operations was a temporary assignment scheduled to last about two months and that the planned immersion was in furtherance of Respondent’s legitimate business interests of having Petitioner to perform his job at a competence level higher than “marginal.” Furthermore, Petitioner’s correspondence of September 19, 2014, wherein he specifically requests “complete and full immersion,” when compared to his correspondence of October 3, 2014, wherein he retreats to a preferred experience of ‘agent like immersion,’ shows that Petitioner was simply trying to the game the system in an attempt to avoid “plac[ing] a burden on [his] personal needs” as repeatedly referenced in his correspondence of October 3, 2014. Petitioner offered no credible evidence that Respondent’s decision to fully immerse him, on a temporary basis, in its call center operations was done for reasons other than those related to improving Petitioner’s job performance, and concomitantly Respondent’s business operations. In other words, Petitioner failed to prove that Respondent’s decision to fully immerse him in its call center operations was done in retaliation for his having alleged that Ms. Price discriminated against him on the basis of his gender. In the Employment Charge of Discrimination, Petitioner alleges, in part, the following: I suffer from three chronic disabilities as explained to my employer when requesting reasonable accommodation to work from home, when not tasked with a training class, the call center floor and office space triggers disability-related episodes and limits my ability to concentrate and effectively focus. Respondent continues to make the process of providing me reasonable accommodations difficult and shows no desire to work with me, or my physician’s requirements, to allow me to quickly return to work and perform my job functions. The fact that Petitioner suffers from recognized disabilities is not in dispute. On or about October 30, 2014, Petitioner informed Ms. Lampkin during a telephone conference that he believed that he had one or more physical impairments that might warrant an accommodation. Specifically, Petitioner reported that the workplace lighting was bothersome and that he would work better with incandescent or natural lighting. Ms. Lampkin asked Petitioner to provide additional information about his lighting concerns so that Respondent could determine whether workplace modifications were necessary. Petitioner also informed Ms. Lampkin that he was not sure whether his lighting concerns were temporary or would be on-going. On November 3, 2014, Petitioner e-mailed Ms. Lampkin stating, in part, the following: I am unable to go into the call center and back office areas as it directly impacts my sense of well-being and heightens my medical concerns. Therefore I am unable to report to the office to conduct my required function of creating training curriculums and educational products. My physicians are preparing documentation for you as requested. Due to the nature of my core job functions, I am requesting that work from home be authorized as a reasonable accommodation. As of November 3, 2014, the only specific medical concern mentioned by Petitioner was his sensitivity to lighting. On or about November 11, 2014, Petitioner gave Ms. Lampkin a letter from his physician. The physician’s letter states, in part, that Petitioner should be allowed “to work from home when [he] is not tasked with conducting training classes” because Petitioner “will be better able to perform the essential functions of his position by working from home.” The letter goes on to state that “the work environment triggers severe panic attacks” and that Petitioner “has become increasingly sensitive to and made ill by various fragrances and fluorescent lighting, all of which would be eliminated by working from home.” The physician also notes that “[f]urther support of this request is the fact that [Petitioner’s] primary job functions can effectively be performed remotely, with the need for being present in the office relegated to those times when he must attend meetings for which teleconference is not available or to perform the training that he conducts.” The physician's letter did not indicate that Petitioner was unable to perform the essential functions of his job without a reasonable accommodation. Rather the letter stated that Petitioner would be “better able to perform the essential function of this position by working from home.” Based on the rather cryptic information contained in the physician's letter, Respondent was unable to grant Petitioner's request for a reasonable accommodation. In response to the physician’s letter, Respondent, on November 13, 2014, informed Petitioner that “[a]dditional information is necessary in order to make a determination regarding [the] request for reasonable accommodation.” The additional information requested from Petitioner’s physician is as follows: What are the environmental factors which trigger the panic attacks? When is the condition(s) expected to resolve and a return to work to occur? What about the conditions(s) prevents performing daily work tasks in the workplace, but permits conduction of classroom training in the workplace? Are there other alternatives which can be offered, outside of working from home, which allow the essential job functions to be performed? If so, what are those alternatives? The previous letter states that the primary job functions can be performed from home. What are those primary job functions which were referenced in that statement? The previous letter reference enclosures, but none were provided with the letter. Please provide any relevant enclosures for review. Each question asked by Respondent was reasonably tailored so as elicit responses that would better enable Respondent to analyze Petitioner’s request for accommodation and to explore the availability of other possible accommodations. On November 19, 2014, Petitioner wrote a lengthy message to Ms. Lampkin contesting Respondent's need for the additional information. In response to this missive, Ms. Lampkin, on November 20, 2014, informed Petitioner that his “request for accommodation has been conditionally denied pending the receipt of the required information.” On November 21, 2014, Petitioner sent another missive to Ms. Lampkin and argued therein that Respondent's request for additional information was overbroad and that in his opinion he had provided sufficient information so as to allow Respondent to grant his request for accommodation. In response to the concerns expressed by Petitioner, Ms. Lampkin provided a detailed explanation to Petitioner of why additional information was needed to evaluate his request for accommodation and encouraged Petitioner to provide the information “as expeditiously as possible so that we can move forward with granting you an accommodation.” His protestations to the contrary notwithstanding, Petitioner had not, as of November 21, 2014, provided Respondent with sufficient information to allow Respondent to determine what reasonable accommodations were necessary and available in order to address Petitioner’s mental and physical impairments. On November 24, 2014, Petitioner supplied Respondent with what is described as “supplemental documentation” from his physician. This documentation was not, however, information entirely responsive to the six points of inquiry mentioned in Respondent’s November 13, 2014, correspondence to Petitioner. Based on the supplemental information, Respondent informed Petitioner that it would modify the workplace to accommodate Petitioner’s sensitivity to light and scents. Petitioner was directed to report to work on December 1, 2014. Petitioner did not return to work on December 1, 2014, as instructed. Petitioner e-mailed Respondent on December 3, 2014, to state that he had not received the e-mail instructing him to return to work on December 1, 2014. He also indicated that he did not believe that all of his workplace concerns had been addressed. Ms. Lampkin responded on December 5, 2014, indicating that Respondent had addressed all known workplace issues and also informed Petitioner that additional information would be considered, if supplied. Specifically, Ms. Lampkin stated to Petitioner: I, too, am willing to continue to engage in this interactive process with you. The next steps in the process, should your position remain that your condition(s) warrant further accommodation including working from home, involve your supplying me with specific responses to the informational requests I have previously made. The informational requests that I made were not entirely answered by the response I received from you dated 11/21/14. I am happy to re-send you the form so that you can provide the remaining information. Please advise. On December 9, 2014, Ms. Lampkin provided Petitioner with another copy of the form setting forth the information requested on November 13, 2014. In her correspondence of December 9, 2014, Ms. Lampkin explained that “[t]he information contained in the form that you returned to me was insufficient to enable RTX to approve your request to telecommute indefinitely or to allow RTX to evaluate what reasonable accommodations other than what RTX has already offered may be available.” On December 11, 2014, Ms. Lampkin again requested that Petitioner provide her information responsive to those items enumerated in her correspondence of November 13, 2014. On December 15, 2014, Petitioner advised Ms. Lampkin that he was expecting to receive from his physician information responsive to her requests and that he would forward the same to her as soon as possible. On or about December 18, 2014, Petitioner sent Respondent a second letter from his physician. In the letter, Petitioner’s physician stated definitively that “I do not find any other accommodations available other than for the patient to be afforded the ability to work remotely when not tasked with conducting training classes which require physical presence.” Based on that statement by Petitioner's physician, Respondent agreed to grant Petitioner a reasonable accommodation and to permit him to work from home when not tasked with conducting classroom training. Petitioner was advised that January 2, 2015, would be his official return-to-work date. Respondent acted reasonably, and communicated with Petitioner appropriately, when seeking information related to Petitioner’s desire to work from home. The evidence does not support Petitioner’s contention that Respondent unreasonably delayed granting Petitioner’s request to work from home. On or about January 5, 2015, Petitioner, via videoconference, met with Ms. Price to discuss the new hire training class that Petitioner was to conduct on January 12, 2015. The following day, on January 6, 2015, Petitioner sent an e-mail to Ms. Price and Ms. Lampkin and complained therein of not having enough time to prepare for the January 12, 2015, new hire training session. Petitioner, nevertheless, assured Respondent that “it will get done” and any questions that he could not answer during the training session “will go to the parking lot while [he] obtains an answer for the students.” On Monday, January 12, 2015, the day of the new hire training session, Petitioner, at 9:52 a.m., sent the following e-mail message to Ms. Price and Ms. Lampkin: I have spent 10.5 hours within the ER on Sandlake Road and awake for over 22 hours, so I will not be in today to begin your impromptu FAC training class. I will either be in tomorrow or we can consider this my constructive discharge/resignation and I will simply limit my interaction with RTX through the ongoing investigations. The choice is yours, of course, but kindly let me know so I can plan my Tuesday accordingly. I need to rest, now. Thank you. At 6:28 p.m., on January 12, 2015, Ms. Lampkin, in response to Petitioner’s e-mail, informed Petitioner of the following: Your absence today is unexcused. You are being given the opportunity to convert today’s absence to an excused absence by presenting a doctor’s note. If today’s absence remains an unexcused absence, you are subject to discipline. We are expecting you to be present to teach the class tomorrow, and to be ready to teach at 8:00 a.m. You were to have printed the materials earlier, and we expect that you will be ready to teach at 8:00 a.m. Petitioner did not report to work on January 13, 2015, to conduct the training session. Instead, Petitioner, at 9:41 a.m. on January 13, 2015, informed Ms. Lampkin that “the curt and underhanded behavior of RTX increases my anxieties . . . [and] it has been determined by myself and my health care providers that it is to my benefit to continue with a constructive resignation.” Respondent deemed Petitioner as having voluntarily resigned his employment with the company.
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 that Respondent, Resort Travel and Xchange, did not commit unlawful employment practices as alleged by Petitioner, Jason L. Van Horne, and denying Petitioner's Employment Charge of Discrimination. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 18th day of March, 2016.
