Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in this case was issued on January 12, 2011, setting the hearing for March 30 and 31, 2011, in Tavares, Florida. The hearing was scheduled to commence at 9:00 a.m. on March 30, 2011. Also on January 12, 2011, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On March 23, 2011, Petitioner filed a letter at the Division of Administrative Hearings stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. This letter indicated that Petitioner was aware of the scheduled hearing dates. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. On March 29, 2011, Petitioner filed a second letter at the Division of Administrative Hearings that declined to request a continuance of the hearing and proposed that the hearing proceed based on hearsay documents that Petitioner had previously filed at the Division of Administrative Hearings. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. At 9:00 a.m. on March 30, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:15 a.m. Counsel for Respondent entered his appearance and requested the entry of a recommended order of dismissal. As noted above, Respondent had received no notice that Petitioner did not intend to appear at the hearing or that continuance was under consideration. Respondent's counsel had flown to Florida from Tennessee to appear at the hearing. One of Respondent's witnesses was a former employee whom Respondent had flown to Florida from Wisconsin at Respondent's expense. Respondent vigorously opposed any continuance of the scheduled proceeding. The undersigned declined on the record to continue the hearing. The hearing was then adjourned.
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 4th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 4th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Leebron Grand Court Tavares 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 Ann L. Brunette Post Office Box 304 Fruitland Park, Florida 34731 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner timely filed her Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations ("Commission").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with investigating and acting upon complaints filed under Florida's Civil Rights Act, Sections 760.01-760.11, Florida Statutes (2006).1 § 760.06, Fla. Stat. On August 14, 2006, the Commission issued a Right to Sue notice, in which it informed Ms. Williams, among other things, that the FCHR hereby issues this Right to Sue. Since it has been more than 180 days since your complaint was filed, and since no determination was made within 180 days, you are entitled to pursue the case as if the FCHR issued a Determination of Reasonable Cause. . . . (Citation omitted). You may pursue this case in the Division of Administrative Hearings by filing a Petition for Relief with the FCHR within 35 days from the date of this Right to Sue letter, or you may file a lawsuit in a circuit court of the State of Florida anytime within one year from the date of this Right to Sue letter, provided such time period is not more than four years from the date the alleged violation occurred. Pursuant to the terms of this notice, Ms. Williams was required to file her Petition for Relief with the FCHR no later than 35 days from the date of the August 14, 2006, notice, that is, no later than September 18, 2006. Ms. Williams completed and signed a Petition for Relief from an Unlawful Employment Practice on September 14, 2006. A receipt from the USPS establishes that, on September 17, 2006, the USPS accepted a letter from Ms. Williams addressed to the Commission; that the letter was sent via express mail; that neither next-day nor second-day delivery was selected; that a third option for delivery, "Add Del Day," was selected. The scheduled date of delivery stated on the receipt was September 20, 2006. Ms. Williams's Petition for Relief from an Unlawful Employment Practice was received by the Commission on September 19, 2006. The USPS tracking website shows that the letter assigned number EQ 628681913 US was delivered on September 19, 2006.
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 from an Unlawful Employment Practice filed by Teesha Williams. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 21st day of November, 2006.
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of October, 2018.
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
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 complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2016.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida. P MICHAEL RUFF 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 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, 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 March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed employment discrimination against Petitioner.
Findings Of Fact Petitioner is a Peruvian South American Indian and Hispanic. He is also a Spanish speaker, although he speaks English fluently. Respondent owns and operates a chain of grocery stores. Petitioner worked at Respondent's store in Fort Lauderdale from December 1992 until he was terminated in August 2005. Petitioner started as a produce clerk and, at the time of his termination, he had worked his way up to produce manager. He had been employed as a produce manager of the Fort Lauderdale store since April 2002. Petitioner enjoyed a good reputation among his coworkers. He was fair and a good manager. He enjoyed good rapport with customers and employees. Petitioner's employment record was unblemished except for one incident prior to the subject incident. On February 17, 2005, Petitioner received an Unsatisfactory Work Warning for misuse of Respondent's email system and inappropriate communication. Petitioner was one of several employees disciplined at this time for this offense. Under well-established and uniformly enforced rules, Respondent maintained a policy of terminating any employee who received any discipline within six months after receipt of an Unsatisfactory Work Warning. On August 3, 2005--which is within six months of February 17, 2005--Petitioner was approached by an employee whom he supervised. The employee asked Petitioner for an evaluation. Petitioner complied, informing the employee that his work merited a raise, but no money was available at the time for raises. The employee took his request to Petitioner's supervisor, who conducted a meeting with the employee and Petitioner. During the meeting, she explained Respondent's policy about raises, correcting the mistaken understanding of Petitioner that raises were not presently available. She approved the employee for a raise. The meeting was amicable and ended in this fashion. Later in the day of the meeting, Petitioner approached the employee, playfully tapped him with a small bundle of wire wraps used to bind produce, and asked him, jokingly, why he was trying to get Petitioner into trouble. The employee felt intimidated about the incident and reported it to Respondent's supervisor. Respondent has no tolerance for workplace behavior that may be perceived as intimidating to its employees. Based on this policy, Respondent determined that it was necessary to discipline Petitioner for the incident with the employee. But for the prior incident involving the company email system, Respondent would not have terminated Petitioner. However, because the second incident occurred within six months of the earlier warning, Respondent, consistent with its policy, terminated Petitioner. There is no evidence whatsoever that Respondent terminated Petitioner due to his race or national origin. Although the reason for terminating him does not withstand much scrutiny, it is abundantly clear that the cited reason for termination does not mask an unlawful basis for termination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan D. Jimenez 820 Northeast 19th Terrace Fort Lauderdale, Florida 33304 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jennifer L. Price, Esquire Stearns, Weaver, Miller, Weissler Alhadeff & Sitterson, P.A. 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.
Findings Of Fact The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr. Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment. Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary. 10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver". The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety. DONE AND ENTERED this 7th day of March, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459 Petitioner's Proposed Findings of Fact The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon. Respondent's Proposed Findings of Fact The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Barry W. McCleary, Esquire 3 West Garden Street Suite 380 Pensacola, FL 32501 Donna Gardner, Esquire 213 South Alcaniz Street Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue Did Respondent, State of Florida, Department of Professional Regulation, commit an unlawful employment practice by discriminating against Petitioner on the basis of race?
Findings Of Fact Petitioner is a 35-year-old Black male. Prior to December 1986, Petitioner was employed by Respondent in an OPS position in "Central Files". His work performance in Central Files was both superior and exemplary, and he was offered a State Career Service position as a Senior Clerk within Respondent's "Complaint Section". Upon accepting the Career Service position, Petitioner entered into a mandatory six months' probationary period. In the Senior Clerk position, Petitioner's primary duties were to answer the phone a specific 4-hour daily shift; to assist or act as backup for phone answering during Senior Clerk Terri Jones' (Black female) 4-hour daily phone shift; to prepare and distribute Class II complaint cases to Respondent's "Legal Section"; and to distribute mail and other materials as assigned by his immediate supervisor, Louise Bull (white female). On January 5, 1987, Petitioner took 4 hours unauthorized leave without pay for which he received a written reprimand on January 6, 1987. He had previously been orally reprimanded for the same practice. It was established by competent substantial evidence that Petitioner's immediate supervisor, Louise Bull, had had a number of absences without leave, some of which occurred before Petitioner's termination and some of which occurred after his termination, and that she also received at least one written reprimand for these absences. For some of her absences, Ms. Bull was required to reimburse money to the State, however it was not clear whether the reimbursement was because she was absent when she falsely claimed to be present or was standard reimbursement procedure when the leave actually taken is not covered by accrued leave time. Either way, Ms. Bull was not in a probationary status at any material time and, clearly, as Petitioner's supervisor, hers was not a substantially similar position to that of Petitioner. Petitioner and Cindy Dexter testified that many permanent employees in addition to Ms. Bull were playing fast and loose with tardiness and absenteeism, but their evidence is very indefinite and the race and gender of the employees accused was not established. Ms. Dexter's testimony was vague and not credible on this point. Their testimony on this subject was not confirmed by other credible witnesses nor was it ever established that any of the permanent employees accused by Petitioner held positions substantially similar to his. From almost the beginning of his probationary period, Petitioner had difficulty adjusting to his new position. He evidenced difficulty accepting supervision from Ms. Bull. This disrupted standard office practice. Over the probationary term, Ms. Bull orally counselled Petitioner approximately seven times concerning his lack of acceptance of her supervision as well as excessive tardiness and excessive personal phone usage. Diane Orcutt, the regular Complaint Office Supervisor and Ms. Bull's superior, described Petitioner as avoiding Louise Bull and coming directly to her about problems he perceived in the office operation. Petitioner and Terri Jones, his female job counterpart who is also Black, had an early but undefined job- related dispute, after which he sent her flowers to "make-up". On one occasion, after a loud and disruptive argument arose between Petitioner and Ms. Bull in the general office area, Evelyn McNeely, who was acting supervisor to them both during Ms. Orcutt's vacation, required Ms. Bull to prepare a memorandum clarifying Petitioner's job duties because, in Ms. McNeely's view, the Petitioner did not seem to understand his duties. This was done on June 17, 1987. This memorandum, headed "Performance Evaluation" from Ms. Bull to Petitioner also warned Petitioner that Ms. Bull would recommend extension of his probationary period because he was falling short on acceptable performance in several areas. Louise Bull prepared, delivered, and discussed with Petitioner her performance evaluation, indicating, based upon her personal observations, his failure to satisfactorily perform in the following areas: repeatedly tardy over the last several weeks; failure to properly handle routine telephone duties; failure to comply with their section's procedures for routing of case files; and continued failure to accept supervision under their section's chain of command. Ms. Bull admitted that she suffered emotional problems while Petitioner worked for her and apparently thereafter. She had crying jags and consulted a psychologist. She also received a prescription from some source for the tranquilizer valium. Ms. Bull denied that she and the psychologist ever identified a reason for her emotional state. Melinda Wagoner testified that Ms. Bull related to her that her emotional problems stemmed from living in a Black neighborhood and fighting with Black children when she was a child. The foregoing hearsay is admissible as an admission of a party (DPR) through its supervising agent (Louise Bull), but even if fully credible, this evidence would be insufficient to establish a nexus between Bull's behavior and the reason for Petitioner's eventual termination, in light of the record as a whole. Terri Jones, the permanent employee most substantially similar to Petitioner, was also a Senior Clerk. She is also Black. Her job duties were identical to those of Petitioner, except that they had primary responsibility for phone calls during different parts of each day. Ms. Jones had no supervisory problems of her own with Louise Bull. Ms. Jones asserted that Petitioner had excellent telephone manners but confirmed that Petitioner's regularity in answering the phone either on his shift or as her backup was often insufficient. The Complaint Section's phone was often placed on "hold" with no one waiting on the other end. Although anyone in the office could place a call on "hold" and any caller could hang up before an employee returned to the phone, the inference from all witnesses' testimony as a whole was that this "hold" procedure was being done excessively by Petitioner. Diane Orcutt, regular Complaint Office Supervisor, reviewed Petitioner's phone logs prior to evaluating him at the six months' point. The representative phone logs of the two substantially similar employees, Petitioner and Terri Jones, show that Petitioner logged only 34 calls in the same period that Ms. Jones logged 359. This vast discrepancy can be interpreted in a number of ways: either Petitioner was not answering the phone as directed, or he was not logging all calls as directed, or he was not maintaining the logs as directed. By any interpretation of this empirical data, Petitioner was not fulfilling a prime requirement of his job. At the time of his six months' evaluation, on June 22, 1987, Diane Orcutt made a joint decision with Louise Bull to extend Petitioner's six months probationary period by four months. Ms. Orcutt did this for a number of reasons: his early absences without leave, oral complaints from lower echelon employees that Petitioner would frequently neglect his telephone duties in one way or another, and the disruptive nature of his failure to accept Ms. Bull's supervision. In requiring the additional probation, Ms. Orcutt gave greater weight to the administrative/managerial friction and less weight to Petitioner's reprimanded early absences; however, with regard to the complaints of other employees, she testified that she felt sure Petitioner could do the work because of his past excellent performance on OPS and because of her personal observation but that he needed more time to actually do the job instead of engaging in uncooperative disputes with Ms. Bull. Additionally, Ms. Orcutt was giving Petitioner the benefit of any doubt by taking additional time to sort out whether the disruption problem arose from Ms. Bull or from Petitioner, because at that point, Ms. Bull had no problems supervising other Black or white employees; no oral complaints had been made by other employees against Ms. Bull; and oral complaints against Petitioner confirming Ms. Bull's unrecorded observations of Petitioner had been received personally by Ms. Orcutt. When presented with Orcutt's Mid-Cycle Appraisal and the 4 months' additional probation plan on June 22, 1987, Petitioner was hostile, refused to sign the appraisal, and another disruptive scene arose among Petitioner, Ms. Bull and Ms. Orcutt. Petitioner spent all of the workday of June 23, 1987 in "Personnel" complaining that his evaluation and the 4 months' additional probation was unjust. On two of the remaining successive days of that work week, Petitioner accomplished some work. On one of the remaining successive days in that week, he took his "Personal Leave Day". A weekend intervened, and on Monday, June 28, 1987, Diane Orcutt reassessed the situation, determined that Petitioner was not intending to cooperate, and terminated him, as had always been her option during his probationary period.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Human Relations Commission dismissing the complaint and petition for relief filed by Robert Baucham. DONE and ENTERED this 3rd day of November, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0712 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF): Petitioner's Proposed Findings of Fact None filed Respondent's Proposed Findings of Fact Respondent's proposals have been accepted in substance and modified to conform to the record. Where they have not been accepted, they are rejected as misleading as stated or not supported by the record as stated. COPIES FURNISHED: Robert Baucham Hearings 1021 Idlewild Drive, P-161 Tallahassee, FL 32301 E. Harper Field Deputy General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Kenneth D. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
