The Issue The issue is whether Petitioner's Charge of Discrimination states a cognizable claim under the Florida Civil Rights Act of 1992, as amended in Sections 760.01-760.11 and 509.092, Florida Statutes.
Findings Of Fact Petitioner filed his original Charge of Discrimination with FCHR on March 6, 2000. He filed his amended charge on March 31, 2000, after talking to FCHR's staff on the telephone. Petitioner alleges that he experienced harassment and retaliation in the workplace because he "supported a co-worker Gary Farrell in reporting to the company about harassment he was receiving from Union Business Manager, Joe Nobles and past Job Steward, Richard Mason for quitting Local Union 1055." Petitioner's charge also alleges the following: Joe Nobles and Richard Mason retaliated against me by influencing most of the union members in the department to ostracize us by not talking to us or cooperating with us. Some co-workers have come to me and said they were told not to associate or cooperate with me, because I supported co-worker Gary Farrell in reporting harassment to Corporate Office. Petitioner's complaint did not allege discrimination or retaliation based on his race, color, religion, national origin, sex, age, handicap and/or marital status. Petitioner was given an opportunity to amend his complaint before the FCHR and failed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 31st day of July, 2000. COPIES FURNISHED: Ralph A. Peterson, Esquire Beggs & Lane, LLP Post Office Box 12950 Pensacola, Florida 32576-2950 R. John Westberry, Esquire Holt & Westberry, P.A. 1108-A North 12th Avenue Pensacola, Florida 32501 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Department of Economic Opportunity (DEO or Department), discriminated against Petitioner, Georgie Breville, in violation of the Florida Civil Rights Act of 1992 (the Act), sections 760.01–760.11 and 509.092, Florida Statutes, based upon her national origin, age, disability, or in retaliation.
Findings Of Fact Petitioner is a 64-year-old female from Mauritius, a French island nation off the coast of Africa. As such, she falls within a protected class based on age and national origin. Respondent, DEO, is the successor State agency to the former Agency for Workforce Innovation (AWI) with the responsibility to implement the FloridaWorks program. FloridaWorks is organized into Regional Workforce Boards which oversee the delivery of employment services in their local jurisdictions. Employment services delivered at local One-Stop Centers include job searches, job counseling, and resume drafting, among others. Petitioner was employed at the FloridaWorks Alachua County One-Stop Career Service Center in Gainesville, Florida, from 2001 through 2010. At all times relevant hereto, Petitioner was an employee of AWI in the position of Customer Service Specialist. In her capacity as Customer Service Specialist, Petitioner met with job seekers, assessed their needs, and referred them for assessment testing and community services. She also conducted workshops on resume writing, interviewing skills, and job search skills. In February 2009, Betty Holmes, an AWI employee, became Petitioner’s supervisor. By letter dated September 17, 2010, Petitioner was terminated from her employment with AWI effective October 1, 2010. The termination letter was hand delivered to Petitioner on September 20, 2010, by Ms. Holmes in her office at the One-Stop Center. The letter stated that Petitioner’s termination was due to loss of funding for the Regional Workforce Board. On October 22, 2010, Petitioner filed a Charge of Discrimination with the Commission alleging that Florida Management Solutions, Inc. (FMS), had discriminated against her on the basis of her national origin, age, and in retaliation by giving her unfair negative evaluations, harassing and demeaning her, assigning her a larger workload than other employees, and ultimately unfairly terminating her.3/ The Commission issued a Determination of No Cause on May 16, 2011, finding there was no cause to find that Respondent had committed an unlawful employment action. Petitioner timely filed with the Commission a Petition for Relief against FMS, which was forwarded to DOAH for assignment of an administrative law judge (ALJ) to conduct a fact-finding hearing. Following an evidentiary hearing on the matter, the ALJ entered a Recommended Order finding that FMS was not Petitioner’s employer during the time period in which the alleged acts of discrimination occurred. Rather, the ALJ found that AWI was Petitioner’s employer. The Recommended Order was entered on September 14, 2011. On September 29, 2011, Petitioner filed a Complaint of Discrimination against AWI alleging unlawful employment discrimination on the basis of her race, national origin, age, and in retaliation. Again, the Commission issued a Determination of No Cause and Petitioner filed a Petition for Relief, which was forwarded to DOAH and assigned to the undersigned for conduct of an evidentiary hearing. Petitioner’s Complaint of Discrimination alleges that she was discriminated against by being assigned a larger caseload and being held to different performance standards than similarly situated non-classified employees; denied training; given unmerited negative performance evaluations; harassed, demeaned, and threatened, resulting in negative health issues; and unlawfully terminated, resulting in loss of benefits and future employment opportunities. As such, Petitioner’s complaint raises both individual discrete acts of discrimination, as well as an ongoing hostile work environment. Petitioner’s complaint and testimony are largely focused on the treatment she received from Ms. Holmes, her supervisor from February 2009 to October 1, 2010. Petitioner alleges that when Ms. Holmes became her supervisor, Ms. Holmes removed Petitioner from her usual duties and assigned Petitioner a caseload of 150 cases in a program with which she was not familiar. Petitioner argues that the assignments were unreasonable and, perhaps, even unauthorized by the agency. Petitioner further alleges that Ms. Holmes was critical of Petitioner’s inability to complete the cases in a timely manner, and that Petitioner was denied the training she requested to better perform on the job. Ms. Holmes’ assignment of job duties to Petitioner, as well as Petitioner’s request for training, occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that the employee evaluations Ms. Holmes performed, completed, and signed in April 2009 and April 2010 were unmerited.4/ The evaluations complained of were completed more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that Ms. Holmes unnecessarily contacted 9-1-1 on May 18, 2010, when Petitioner fainted in Ms. Holmes’ office, and allegedly told the paramedics that Petitioner was acting erratically prior to fainting, allegations which Petitioner denies. The incident during which Petitioner fainted and was taken to the hospital by the paramedics occurred more than 365 days prior to the date on which Petitioner filed her Compliant of Discrimination. Petitioner alleges that Ms. Holmes spoke harshly to her, yelled at her, told her to “shut up,” and made demeaning comments about Petitioner’s French accent. Petitioner testified that Ms. Holmes made Petitioner repeat after her, and on at least one occasion said, “This is how Americans speak.” All the statements alleged to have been made by Ms. Holmes occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. On May 26, 2010, Petitioner filed a grievance with AWI Human Resources regarding Ms. Holmes’ alleged harassment of Petitioner as well as her unmerited negative evaluation. After filing the grievance, Petitioner met with Ms. Holmes and her direct supervisor, Arelis Rosario, to discuss her performance evaluation and other issues raised in Petitioner’s grievance. A written summary of the meeting was made and signed by Petitioner, Ms. Rosario, and Ms. Holmes on June 2, 2010. Petitioner disagrees with the substance of the summary and maintains that her grievance was not satisfactorily resolved. Petitioner alleges that she was terminated, in part, in retaliation for filing the grievance against Ms. Holmes. The grievance filed against Ms. Holmes, as well as the resolution meeting between Petitioner, Ms. Holmes, and Ms. Rosario, occurred more than 365 days prior to Petitioner’s Complaint of Discrimination. Petitioner was notified of her termination on September 20, 2010, which was a Monday. At hearing, Petitioner did not testify with certainty whether, or on which days, she was absent from work following notice of her termination. Petitioner had enough accumulated leave to take the two weeks off between termination and effective date. However, Petitioner chose not to. Petitioner was uncertain about the days that Ms. Holmes was in the office during either the week of her termination or the following week. At final hearing, Petitioner seemed confused about various events she related. On the whole, Petitioner’s testimony was inconsistent and equivocal. The evidence was clear that Petitioner was assigned no work during the period of September 20, 2010, through October 1, 2010. Petitioner had little, if any, interaction with Ms. Holmes during that same time period. She testified that her co-workers avoided her and barely spoke to her. Petitioner spent most of her time cleaning out her office and packing her belongings. In what must have been an awkward situation, Petitioner gave away many of her personal belongings to her co-workers during the time period between September 20, 2010, and October 1, 2010. Petitioner gave Ms. Holmes a vase from her office as a gift, although the exact date was not established. Petitioner introduced no evidence of any discrete acts of discrimination by Ms. Holmes, or any other AWI employee, between September 29, 2010, and October 1, 2010. Petitioner has been diagnosed with breast cancer and has been under treatment for several years. Petitioner did not take sick leave when employed at AWI. Instead, she took annual leave for her treatments or attended doctor’s visits during her lunch hour. The evidence did not support a finding that her employer knew of either her diagnosis or treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 26th day of September, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2013.
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 Whether the Petitioner, Stephanie Walker, timely filed a Petition for Relief regarding her charge of discrimination against the Respondent, Bennett Auto Supply, Inc.
Findings Of Fact The Petitioner, Stephanie Walker, applied for and received employment with the Respondent, Bennett Auto Supply, Inc. The Petitioner's initial employment with the company ended on March 8, 2001, as she resigned her job on or about February 26, 2001. Thereafter, the Petitioner returned to employment with the Respondent. Again, the Petitioner resigned her job and left employment on April 27, 2002. The exact reasons the Petitioner began employment, left employment, returned to employment, and again left employment with the Respondent are immaterial to the findings dispositive of this case. Suffice it to say the Petitioner ultimately filed a claim of discrimination with the FCHR against the Respondent. The Petitioner's Charge of Discrimination naming the Respondent was dated March 21, 2003, and noted April 27, 2002, as the date the most recent discrimination had taken place. Based upon its investigation of the allegations, the FCHR issued a Determination: No Cause on September 23, 2003. The Determination: No Cause provided, in pertinent part, ". . . it is my determination that there is no reasonable cause to believe that an unlawful employment practice has occurred." The Notice of Determination: No Cause, provided: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. If the Complainant fails to request an administrative hearing with [sic] 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to section 760.11, Florida Statutes (1992). The Petition for Relief was filed approximately 159 days after the FCHR issued its determination in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's Petition for Relief as it was not timely filed and is, therefore, barred as a matter of law. DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Aplachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard A. Giardino, Esquire Davis & Giardino, P.A. 201 Arkona Court West Palm Beach, Florida 33401 Stephanie Walker 1808 Northwest 52nd Avenue Lauderhill, Florida 33313
The Issue Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2012.
The Issue The issue is whether Petitioner was subject to an unlawful employment practice by Respondent, Meals on Wheels, Etc., Inc., on account of his race and disability, as a result of Respondent's maintenance of a hostile work environment, or as retaliation to his opposition to an unlawful employment practice, in violation of section 760.10, Florida Statutes.
Findings Of Fact As its name implies, Respondent is a non-profit charitable organization engaged in the business of providing free meals, transportation services, and related assistance to senior citizens in the Sanford, Florida, area. Petitioner is a 64-year-old black male of Jamaican origin. He worked as a driver for Respondent from August 13, 2012, until October 23, 2014, when he was discharged for violating a company policy. As a condition of employment as a driver, Petitioner was required to submit a medical fitness form regarding his current medical condition. In the form filed on July 30, 2012, he denied having any medical issues except non-insulin dependent diabetes, which is controlled by diet. See Ex. 21. An updated form was submitted on August 25, 2014, reflecting no change in his medical condition. Id. No other medical records were submitted to substantiate any other medical condition. When he interviewed for the position, Petitioner did not tell Respondent that he needed an accommodation for his diabetes or that he had any work restrictions. As such, management never considered Petitioner to have a disability. Petitioner also provided a post-employment medical questionnaire on August 8, 2012, which stated that he had diabetes but that it was controlled by diet. Id. No other injuries, illnesses, or health abnormalities were reported. As a driver, Petitioner was expected to adhere to Respondent's safety rules. To ensure compliance with the rules, shortly after being hired, Petitioner was required to read, and then sign a statement acknowledging that he understood, the organization's General Policies. See Ex. 1, p. 4. He was also required to acknowledge receipt of its Employee Handbook containing the Safety Policies and Procedures. See Ex. 3. In addition, Respondent's Transportation Coordinator, Mark Taylor, conducted periodic refresher training sessions with all drivers, including Respondent. One of Respondent's most significant safety rules, if not the most significant, is a rule that requires drivers to provide door-to-door service. It provides in relevant part that "[u]pon arrival at a client's home, [a driver must] go to [the] door and knock. If the client needs help, you will be right there to assist." Ex. 1, p. 1, ¶ 6. This rule is intended to promote client safety and to ensure, to the extent possible, that Respondent will not face legal exposure because, for example, a client falls down while walking unassisted to or from the vehicle. To comply with the above rule, drivers are required to get out of the van, go to the front door, knock, and then assist the client walking to the van. This is because the clients are elderly, some use walkers, and they need assistance from the driver while getting to and from the van. On August 21, 2014, Petitioner signed another statement acknowledging that he understood the policy, he agreed to follow it at all times, and he understood that "[t]ermination will result in not following this important safety rule." Ex. 7. As a corollary to the above safety rule, drivers are instructed that they should never honk the vehicle's horn when they arrive at a client's home. Instead, they should get out of the vehicle and go to the front door of the residence. Petitioner was specifically told about the no-honking rule at two safety meetings. The incident underlying Petitioner's discharge occurred on the morning of October 23, 2014. Petitioner was told to pick up Angelo Rosario and transport him to an appointment. The client is in his 80s, suffers from Alzheimer's disease, and uses a walker. He resides in a mobile home-type community with his daughter; and the driveway in front of the mobile home is unpaved with exposed roots making it easy to trip or fall. Although Mr. Rosario was not one of his regular clients, Petitioner had picked him up at least 12 times in the previous 30 days and was familiar with his condition and the area in which he lived. The testimony describing the incident is conflicting. However, the accepted testimony shows that Petitioner arrived at the Rosario residence while Petitioner was on a personal cell phone call to his sister. When he finished the call, Petitioner blew the horn to alert the client that he was there. The honking was loud enough to annoy Rosario's neighbor who approached Petitioner's vehicle complaining about the noise. Suspecting that the neighbor's concern might cause a problem, Petitioner immediately telephoned Mr. Taylor and told him that he had blown the horn and anticipated that someone might be calling him with a complaint. Mr. Taylor told Petitioner that honking the horn was inappropriate, it violated an important safety rule, and he could not just sit in the van waiting for the client. Petitioner admits that during the telephone call, he shouted at Mr. Taylor and claimed he was unaware of the rule. After Mr. Taylor instructed Petitioner to go to the front door to pick up the client, Petitioner exited the vehicle and escorted the client to the van. After speaking with Petitioner, Mr. Taylor immediately telephoned the client's daughter to get her version of events. Mr. Taylor learned that honking had recently occurred rather frequently at the client's home, and he believed that Petitioner was the responsible driver, as Petitioner had transported the client at least 12 times during the previous 30 days. Mr. Taylor immediately reported the incident to the Executive Director, Sherry Fincher, who evaluated the matter, and then decided to terminate Petitioner for violating the organization's most important safety rule. Notwithstanding Petitioner's claim to the contrary, it is the Executive Director alone, and not Mr. Taylor, who makes the decision to terminate an employee. A memorandum was prepared by Ms. Fincher that day indicating that Petitioner was being terminated "due to not following agency policies regarding door-to-door pick up of clients[,] . . . one of the most important policies to ensure the safety of all clients." Ex. 20. This was consistent with Respondent's policy, and one that Petitioner clearly understood. Petitioner's race and diabetic condition played no role in the decision. Petitioner's Employment Charge of Discrimination was filed one month later. Prior to that time, there is no competent evidence that Petitioner had ever complained to Taylor or Fincher about any discriminatory practices by the organization. Since the inception of this case, Petitioner has contended that he has a disability within the meaning of the law. At hearing, however, he acknowledged that his diabetic condition does not affect any major life activity. To support his disability discrimination claim, he testified that on an undisclosed date in 2014, he asked Mr. Taylor if he could eat meals or snacks at designated times because of his diabetic condition but was told he could not. The accepted testimony shows, however, that Mr. Taylor advised him that he could eat whenever necessary, as lunch and break hours are not set in stone. To avoid a drop in his blood sugar, Petitioner was told that he was free to eat or drink something at any time, or even bring a bag lunch with him while driving his routes. Even assuming arguendo that Petitioner had a disability, which he does not, the contention that a disability formed the basis for an unlawful employment practice must fail. Petitioner also contended that Belinda Stum, a white female lead driver, was treated differently than he and was given more "leeway" when she violated a rule. However, the only evidence concerning a rule violation by Ms. Stum involved a different rule. After a client accidentally slipped while being assisted out of the van, Ms. Stum immediately reported the incident to Mr. Taylor and then filed a completed incident report. Other than Ms. Stum, Petitioner was unable to specifically identify any other similarly-situated employees outside his protected class (or even ones within his own class) who were allegedly treated differently than he. Although a client testified at hearing that on several occasions she had observed Ms. Stum sitting in her van when picking up clients, even if this is true, the client admitted that she never reported this to anyone at Respondent's organization so that the alleged violation could be investigated and disciplinary action taken, if appropriate. Petitioner also contends he was subjected to a hostile working environment due to his race and disability. He claimed that Mr. Taylor, a white male, called him "boy," required him to answer "yes sir," and would gesture a "cut throat" sign towards him, threatening him to keep his mouth shut. This assertion was not corroborated by any other evidence, and Mr. Taylor denied the charge. The testimony of Mr. Taylor is accepted as being more credible on this issue. Assuming arguendo that he had a disability, there is no evidence whatsoever that Petitioner was subjected to a hostile working environment due to his diabetic condition. Finally, there is no evidence regarding the charge that Petitioner was terminated in retaliation for engaging in a protected activity. Indeed, Petitioner submitted no credible proof that he complained to management regarding any discriminatory practices that precipitated the alleged retaliation, other than "standing up for his rights" on the day he was terminated, and Taylor and Fincher credibly testified that they were unaware of any such complaints. Complaints made at hearing that he is still owed money and was never paid for training are not germane to this dispute. Petitioner is now working part-time as a driver for a retirement center in the Sanford area. He says he is also employed as a substitute teacher for the Seminole County School Board. Both jobs equate to full-time employment. According to evaluations and testimony at hearing, Petitioner was considered a "good worker," "likeable," and someone who "did a pretty good job." While his evaluations showed he met expectations, his last evaluation noted that he needed improvement in following orders. Except for being "written up" one time for being late to work, Petitioner had no other disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 24th day of November, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2015.
The Issue Did Respondent, Lone Wolf Security Services (Lone Wolf), discriminate against Petitioner on account of her race, sex, or religion, or retaliate against Petitioner in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Petitioner is a self-described “African American, Christian female”. Petitioner worked as a security officer for Lone Wolf, a company that provides security services for privately-owned condominium and apartment properties. Petitioner was employed by Lone Wolf from April 8, 2011, through July 29, 2012, assigned primarily to the Edgewater Beach Resort in Panama City Beach, Florida. On July 27, 2012, Petitioner was involved in a verbal altercation with her site supervisor, Eugene McDaniels, a white male. During the altercation, Mr. McDaniels “threatened to hit me in my mouth if I did not shut my mouth.” William Lasko, Lone Wolf’s District Manager, investigated the circumstances surrounding the altercation, which apparently arose from Mr. McDaniels’ belief that Petitioner had falsified her timesheet. While Mr. Lasko did not place blame for the incident on Petitioner, he nevertheless decided that Petitioner should be reassigned to duties at a different property. However, Petitioner was allowed to finish out her scheduled work week at Edgewater (July 27, 28 and 29, 2012). On July 30, 2012, Mr. Lasko met with Petitioner and advised her that she was being assigned to work pool security at the Majestic Beach Towers, an assignment that would have required her to walk up 24 flights of stairs. Since Petitioner is afraid of heights, she requested a different assignment, and suggested a parking garage position. Mr. Lasko responded that he wasn’t sure a parking garage assignment was available, but advised Petitioner that she would be contacted soon with another assignment offer. On August 7, 2012, Petitioner was contacted by Lone Wolf and offered a position at a property located in Lake Merial. However, Petitioner refused the assignment because it was too far away, and offered a lower rate of pay and undesirable hours. On August 12, 2012, Petitioner was arrested and charged with public assistance fraud. Consistent with company policy, Petitioner’s employment with Lone Wolf was suspended pending disposition of the criminal charge. While the record contains scant evidence of the circumstances surrounding prosecution of the public assistance fraud charge, it was undisputed that Petitioner was convicted of the charge in a jury trial, but adjudication of guilt was withheld. Petitioner contends that part of the evidence that was used to convict her were fraudulent paychecks provided by Lone Wolf to the prosecutor at some point in time after her arrest. Petitioner contends that Lone Wolf provided false evidence against her in an effort to smear her reputation and to deter her from filing charges of discrimination against Mr. McDaniels. Mr. Lasko testified that Lone Wolf only provided the payroll information that was specifically requested by the State Attorney’s Office. Mr. Lasko denied that the payroll information was fraudulent. Rather, as credibly explained by Mr. Lasko, the four “dummy” paychecks provided to the State’s Attorney by Lone Wolf represented the aggregation of several paychecks that had been issued to Petitioner.1/ The evidence in this record does not establish that the payroll information provided by Lone Wolf was fraudulent. On October 12, 2012, Petitioner informed the Lone Wolf Operations Manager that she was quitting her employment with Lone Wolf. Of the 106 employees of Lone Wolf, 13 are black males, 20 are white females, and 6 are black females. Petitioner called a former co-worker, Shequita Holt, to testify on her behalf. Although Ms. Holt testified that Mr. McDaniels “made her (Petitioner) cry sometimes,” she also testified that she did not observe Mr. McDaniels treating Petitioner any differently than he did white employees. Ms. Holt also testified that she was not aware of any other African American employees of Lone Wolf who felt that they were being discriminated against.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 29th day of January, 2015, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 January, 2015.
The Issue Did Respondent engage in unlawful employment practices directed to Petitioner, as defined in Section 760.10(1), Florida Statutes. In particular, did Respondent knowingly terminate Petitioner's employment based on Petitioner's age? Was Petitioner denied the opportunity to become kitchen manager because of her age? Is Petitioner entitled to take up her former duties as a cook at Respondent's restaurant or to be promoted to kitchen manager? Has Petitioner sustained damages, including loss of back and future pay and related benefits?
Findings Of Fact Petitioner, Christina D. McGill is a Caucasian woman who at the time of the alleged unlawful employment practice at issue was 41 years of age. Mrs. McGill worked at the Moorings Restaurant in Pensacola Beach, Florida, as a cook. The restaurant employed from 18 to 20 people during the operative time and all of these employees were of the Caucasian race. Both men and women were employed at the Moorings Restaurant. Prior to six months before October 11, 1997, Mrs. McGill was a cook at the restaurant. Candy Montague was one of her fellow employees. Mrs. McGill believes that Ms. Montague was approximately 25 or 26 or perhaps even 27 years old in 1997. During the time when Ms. Montague was a waitress, Mrs. McGill and Ms. Montague enjoyed an amicable relationship. Approximately six months prior to October 11, 1997, Ms. Montague was promoted to general manager of the restaurant. Subsequent to becoming general manager, Ms. Montague occasionally made remarks concerning Mrs. McGill's age. Ms. Montague remarked that Mrs. McGill was the oldest person in the kitchen, that "the old lady has to go home to her husband," and that she listened to "old timer" music. These remarks bothered Mrs. McGill. Some of these remarks were made on the premises during working hours and some were made at parties which were held subsequent to closing time. Mrs. McGill's husband, Lewis O. McGill, is much younger than Mrs. McGill. He worked as a waiter at the Moorings until he resigned sometime prior to October 11, 1997. He heard co- workers comment with regard to the fact that he was much younger than Mrs. McGill. These comments were made during after-hours drinking parties. He never heard Ms. Montague make these comments. Mr. McGill stated that he could offer no evidence which would indicate that Mrs. McGill was fired because of her age. When Ms. Montague became general manager she reduced the number of hours Mrs. McGill could work. She commented that Mrs. McGill was too old to lift heavy objects. When Mrs. McGill attempted to attain a position as kitchen manager, Mrs. McGill talked to the owner of the restaurant about the job. This made Ms. Montague unhappy. A younger person, Forrest Jameson, was also trying to obtain that job. Mrs. McGill does not know who eventually was appointed to that position. A few days prior to October 11, 1997, Mrs. McGill slipped and fell while off duty and injured herself. She called in sick. When she called Ms. Montague on October 11, 1997, to determine her work schedule, Ms. Montague told Mrs. McGill that she had been terminated for threatening people with knives, failing to follow orders, and exhibiting misconduct in general. Mrs. McGill earned about $300 weekly while working for the Moorings Restaurant. She received about $108 per week unemployment compensation from October 11, 1997 until June 30, 1998. From February 1998 until February 1999 she was employed at Beall's Outlet in Gulf Breeze and received approximately $128 per week in salary. She worked for Allan Davis Souvenirs from February 1999 to August 2000 and received about $250 per week.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon age. DONE AND ENTERED this 20th day of October, 2000, 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 20th day of October, 2000. COPIES FURNISHED: Christina D. McGill 7680 West Highway 90 Apartment 158 Pensacola, Florida 32561 The Moorings Restaurant 655 Pensacola Beach Boulevard Pensacola Beach, Florida 32561 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox RoadSuite 240, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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 Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
