The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black female. As such, she is a member of a protected class. Respondent is a rental and sales company. It rents and sells household furnishings and appliances to consumers. Around the end of June 2008, Petitioner was hired by Respondent as an account manager at its Crawfordville store. Petitioner’s scheduled start time was 7:30 a.m. Petitioner’s account manager duties included delivery of household furniture and appliances to customers, loading and unloading her truck, and collection of money (also known as collecting credits) from customers. Petitioner’s primary delivery route was the south side of Tallahassee, Florida. Her direct supervisor at the Crawfordville store was James Shaw. Mr. Shaw is a Black male. Petitioner alleged that in July 2008, James Shaw began to sexually harass Petitioner, inviting her to a hotel and on one occasion, locking her in the store, pushing her against some furniture, and groping her. Shortly after allegedly being groped, Petitioner reported the incident to Craig Carricino, Store Manager at RAC’s Tallahassee store, and Kevin Besette, the then District Manager. She also called RAC’s complaint hotline. Petitioner reported the incident to Mr. Carricino because she knew him from past dealings with him at the Tallahassee store and felt more comfortable reporting the incident to him. Petitioner made it clear that she did not want to return to the Crawfordville store and desired to be transferred to another location. On the day of Petitioner’s complaint, Brad Donovan, Coworker Relations Manager, initiated an investigation into Petitioner’s claim. Additionally, Mr. Donovan was aware of Petitioner’s desire to transfer to another store and immediately offered Petitioner the opportunity to transfer to RAC’s Tallahassee location. Petitioner readily accepted the offer and was transferred to the Tallahassee store where Mr. Carricino was the manager. After Petitioner’s transfer, Mr. Donovan proceeded with his investigation into her allegations of harassment. He interviewed Mr. Shaw, who denied Petitioner’s allegations. He interviewed Petitioner, who provided him with the name of a witness to Mr. Shaw’s sexual advances. Mr. Donovan interviewed this other witness. The witness reported that he had not seen any inappropriate conduct on the part of Mr. Shaw towards Petitioner. Petitioner never advised Mr. Donovan or any other person at RAC of any other witnesses to the alleged sexual misconduct of Mr. Shaw. In essence, Petitioner’s allegations could not be established because no independent evidence existed to support her allegations of sexual harassment. However, Respondent promptly addressed Petitioner’s allegations of sexual harassment. It investigated her claims and immediately transferred her to another store. Respondent also counseled Mr. Shaw about sexual harassment, but took no further action against him because of the absence of any independent evidence to support Petitioner’s allegations. Clearly, Respondent exercised reasonable care to prevent and promptly address Petitioner’s allegations of sexual harassment. Irrespective of whether Petitioner’s allegations against Mr. Shaw are true or believed, RAC did not engage in an unlawful employment action against Petitioner because it acted appropriately in addressing Petitioner’s allegations based on the investigation and conclusions it had reached about Petitioner’s allegations. RAC was not obligated to do more even if Petitioner disagreed with the company’s decision not to discipline Mr. Shaw. After her transfer, Petitioner felt she was harassed/retaliated against by Mr. Carricino when she was “written up” for being late to work. Petitioner identified Scott Taff, who is White, as the only non-minority employee who had allegedly been treated differently than her. She based her assertion on the fact that Scott Taff was not fired when he was late after being ‘written up’ for tardiness. Without going into the mostly hearsay evidence presented at hearing, Petitioner’s own testimony revealed that she was not fired for being late several more times after being ‘written up’ and warned for such tardiness. Additionally, there was no evidence presented regarding Mr. Taff’s disciplinary history or that he had a chronic tardiness problem. Given these facts, the evidence did not demonstrate that non-minority or male employees were treated differently than Petitioner. The evidence, also, did not demonstrate that Petitioner was subjected to any retaliation for her earlier sexual harassment complaint. The evidence did show that her employer wanted her to be at work on time and endeavored to stress its desire to her. Such action does not constitute an unlawful employment practice, especially when the employee has a tardiness problem. Petitioner also alleged she was harassed/retaliated against when she was told that she would have to lift 150-lb. sofas, and, if she complained about the duty, she would be fired. Petitioner did not testify about any specifics regarding this allegation. However, Petitioner’s job required that she be able to deliver a variety of products made available by Respondent, including sofas. Moving furniture, loading and unloading her truck, and picking up and delivering furniture was not specifically required of Petitioner, but was required of all similarly-situated account managers. By her own testimony, Petitioner described times when she had help in moving furniture and times when she did not have help in moving furniture. The store’s manager testified that Petitioner, like other employees, received help moving furniture when other employees including himself, were available to help and not performing their own similar job duties. There was no credible evidence that Petitioner was denied help moving furniture based on her race, sex or in retaliation for her earlier allegations of sexual harassment. Finally, Petitioner alleged that she was harassed/retaliated against when she was not allowed to “collect credits” from customers because she was sent on deliveries and later disciplined for not “running these credits.” However, all account managers were required to collect money from customers and make deliveries. Petitioner was not singled out in being required to collect money from customers and make deliveries. All account managers had to figure out how to perform both functions. Petitioner’s testimony regarding being prohibited from collecting money on Saturday was not established by the evidence. The evidence showed that, for a short time, account managers were instructed not to use the computer system on Saturday mornings to help them in collecting money from customers because of some issue related to the computer system. However, the policy later changed to allow account managers to use the computer system on Saturday mornings. Moreover, there was no evidence that Petitioner could not otherwise collect money from customers without the aid of Respondent’s computer system. The computer may have made the collection process easier because customer contact information was stored in the computer system; however, the lack of use of that system on Saturday mornings did not prevent Petitioner from collecting money from customers. Customer information was available to Petitioner during the rest of Respondent’s time at work. Petitioner, again without any necessary specifics, claims that Mr. Taff was allowed to collect money on Saturdays. No computer records were introduced into evidence and no evidence of the time period when Mr. Taff allegedly collected money on Saturdays was adduced at hearing. Respondent denied that Mr. Taff collected money when he was not supposed to. The evidence did not demonstrate that Mr. Taff or any other similarly-situated employee was treated differently than Petitioner. The evidence did demonstrate that Petitioner had the lowest collection rate at the Tallahassee store and was consistently below that store’s standard for the collection of money. The District manager, Carney Anderson, who is Black, testified that he had no trouble meeting company expectations for collecting money from customers when he was an account manager in a similar, but larger, area and saw no reason why Petitioner could not meet the expectations of the company in the area she was assigned in Tallahassee. Petitioner did not perform up to the Respondent’s standards for the collection of money from customers. Importantly, a former male employee who failed to adequately collect money from customers was similarly disciplined for failing to perform this important job duty. Because Petitioner failed to meet the standards of the Respondent for the collection of money from customers, Mr. Carricino informed Petitioner that she would be terminated for her inability to meet those standards. Mr. Carricino offered Petitioner the option of resigning and assured her that he would provide a favorable recommendation to her, if she did. Petitioner elected to resign and wrote a letter of resignation. The letter did not mention discriminatory or retaliatory treatment and read as follows: “Thank you for everything. I am grateful for the opportunity that you gave me to work at Rent-a-Center, but at this time, I am unable to perform my duties as a mother to my kids due to the overwhelming hours. I am giving my two weeks notice today 11/10/08 in hopes of returning one day in good standing.” Mr. Anderson, who worked at the Tallahassee store every Monday, spoke with Petitioner about the basis of her resignation. She did not mention any belief she had that she had been retaliated or discriminated against. During Petitioner’s final two weeks, Mr. Anderson noticed a serious decline in Petitioner’s attitude and a decline in her work performance. He was not surprised because he had seen other short-term employees have a similar decline. Therefore, on November 15, 2008, Mr. Anderson instructed Mr. Carricino to terminate Petitioner’s employment immediately and Petitioner was terminated that day. There was no evidence that Respondent’s reason for terminating Petitioner was false or a pretext to hide discriminatory or retaliatory behavior. Moreover, given the short time that Petitioner had remaining at RAC and the fact of her resignation; the evidence did not demonstrate that Petitioner suffered an adverse employment action when she was terminated early during her final two weeks with RAC. Given these facts and the lack of evidence to support Petitioners allegations, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 30th day of September, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2009. COPIES FURNISHED: Massa Dionna Hill 1613 Quazar Road Tallahassee, Florida 32311 Andrew Trusevich, Esquire Rent A Center, Inc. 5501 Headquarters Drive Dallas, Texas 75024 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 17, 2004.
Findings Of Fact Petitioner, Linda Marchinko, was employed by the Witteman Company, Inc., from 1966 until April 2003. The Witteman Company, Inc. (hereinafter "Inc.") was a division of the Dover Corporation. While employed by Inc., Petitioner held the position of traffic manager. The most recent description of the duties of the position of traffic manager reads as follows: Responsible for, but not limited to, traffic managerial duties, coordinate and arrange for all product shipments, required documentation, customer interaction, and providing back-up support as required to others within the Company. Work with minimum supervision, produce quality, complete and accurate work and be an active and positive participant on teams and committees to which assigned. In February 2003, Cryogenic Industries made an asset purchase of Inc. and established Witteman, LLC (hereinafter LLC). LLC engineers and sells carbon dioxide, recovery, and production equipment to soft drink and brewing companies. Whereas Inc. had a maximum of 110 employees, LLC was established with only 17 employees, as many departments such as purchasing, traffic, and accounting were eliminated or "farmed out." At the time of the asset purchase, all employees of Inc. were terminated due to the sale of the assets of Inc. Petitioner was terminated from employment with Inc. effective April 8, 2003. She signed a Severance Agreement and Waiver and Release of Claims, releasing Inc. from all claims, including any related to the Age Discrimination and Employment Act. The position of traffic manager has not and does not exist at LLC. Petitioner was not hired by LLC. Petitioner has never been employed by LLC and, therefore, was not terminated by LLC. A few employees of Inc. were hired by LLC. Petitioner was not one of them. Cara Brammer is one of the employees of Inc. who was hired by LLC. Her position is Comptroller. Petitioner contends that regardless of Ms. Brammer's title, Ms. Brammer performs the same functions that Petitioner used to perform for Inc. Petitioner believes that Ms. Brammer was hired by LLC because she is younger than Petitioner. At the time Ms. Brammer was hired by LLC, she was approximately 39 years old and Petitioner was 55 years old. Ms. Brammer's duties as Comptroller include accounts payable, cost accounting, and general ledger work. According to Ms. Brammer, the traffic manager duties previously performed by Petitioner were separated between two of LLC's sister companies in California, which handle all of the major equipment, including manufacturing and shipping for LLC. William Geiger is General Manager of LLC. According to Mr. Geiger, the manufacturing of the product was shifted to two divisions located in California. The primary shipping of the company's product was also shifted to California. This is consistent with Ms. Brammer's testimony. According to Ms. Brammer, a small portion of the shipping duties that had initially been sent to California are now handled by LLC. She estimates that she spends only four to five hours a week on these traffic duties, that Mr. Geiger handles some of these duties, and that "quite a bit" of these traffic duties have been farmed out to a company called Freight Forwarder. LLC employs people in their thirties, forties, fifties, and sixties. There is no competent evidence that LLC used age as a criterion in its determination of who would and who would not be hired for the newly formed company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2005.
The Issue The issue is whether Respondent, Mojo Old City BBQ ("Mojo"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on his gender.
Findings Of Fact Mojo is an employer as that term is defined in section 760.02(7), Florida Statutes. Mojo owns and operates a restaurant at 5 Cordova Street in St. Augustine. Mojo has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, gender, national origin, or any other categories of persons protected by state or federal anti- discrimination laws. The policies also provide a specific complaint procedure for any employee who believes that he or she is being discriminated against or harassed. At the time of his hiring, Petitioner received an orientation that thoroughly explained the anti-discrimination and reporting policies. Testimony at the hearing established that Petitioner was again informed of these policies at an employee insurance meeting held in October 2013. Petitioner, a black male, was hired by Mojo on August 2, 2013, as a dishwasher. Petitioner testified that “from day one” he was called names and harassed by everyone at Mojo, employees and managers alike. He stated that an employee named Linwood Finley would yell that he didn’t want to work with a man who looked like a girl, or a “he/she.” Mr. Finley said, “I don’t want to work with a man that can't have kids.” Petitioner testified that the managers and staff would accuse him of looking between their legs. Employees would walk up to him and try to kiss him. He was told that he had to go along with these antics or find somewhere else to wash dishes. Petitioner testified that he believed he was fired for refusing to kiss other male employees. He had seen Mr. Finley and another male employee kissing behind the restaurant. He stated that two male employees had tried to kiss him and he refused their advances. Petitioner testified that he complained about the kissing to anyone who would listen. He said, “I’m not a woman, I’m a man. I got to come in here every day to the same stuff over and over. Y’all act like little kids.” Petitioner stated that when he complained, the harassment would stop for the rest of that day but would resume on the following day. Petitioner testified that there is a conspiracy against him in St. Augustine. For the last five years, he has been harassed in the same way at every place he has worked. Petitioner specifically cited Flagler College, the Columbia Restaurant, and Winn-Dixie as places where he worked and suffered name calling and harassment. Petitioner testified that he wanted to call several employees from Mojo as witnesses but that he was unable to subpoena them because Mojo refused to provide him with their addresses. Petitioner could provide no tangible evidence of having made any discovery requests on Mojo. Petitioner was terminated on November 29, 2013, pursuant to a “Disciplinary Action Form” that provided as follows: Roderick closed Wednesday night2/ in the dish pit. Again we have come to the problem with Roderick not working well with others causing a hostile work environment. This has been an ongoing issue. This issue has not resolved itself, and has been tolerated long enough. Roderick has been talked [to] about this plenty of times and written up previously for the same behavior. The documentary evidence established that Petitioner had received another Disciplinary Action Form on October 2, 2013, providing a written warning for insubordination for his hostile reaction when a manager asked him to pick up the pace in the evening. Laura Jenkins, the front-house supervisor at Mojo, was present at Mojo on the night of November 27, 2013. She testified that Petitioner had a history of getting into arguments with other kitchen employees that escalated into screaming matches during which Petitioner would commence calling the other employees “nigger.” Ms. Jenkins stated that on more than one occasion she had asked Petitioner to cease using “the ‘N’ word.” On the night of November 27, Petitioner was running behind on the dishes, so Ms. Jenkins asked another kitchen employee, Colin Griffin, to pitch in and help him. Petitioner did not want the help and argued with Mr. Griffin. Ms. Jenkins testified that Petitioner was screaming and cursing. The situation was so volatile that Ms. Jenkins felt physically threatened by Petitioner. She was afraid to discipline him that evening while she was the sole manager in the restaurant. On November 29, Ms. Jenkins met with kitchen manager Billy Ambrose and general manager Linda Prescott. They decided that Petitioner’s actions could not be tolerated anymore and that his employment would be terminated. Mr. Ambrose testified that on several occasions he sent people to help Petitioner in the dish pit and Petitioner refused their help. Petitioner would get into arguments with other employees over such things as the proper way to stack dishes. Mr. Ambrose named four different employees, including Mr. Finley, whom he sent to help Petitioner. Each one of them reported that Petitioner started an argument. Mr. Ambrose stated he went in to help Petitioner himself on one occasion and that Petitioner “kind of gave me attitude” despite the fact that Mr. Ambrose was his supervisor. Mr. Ambrose testified that Petitioner had an argument with Mr. Finley one morning that resulted in Mr. Ambrose having a cautionary talk with both employees. Mr. Ambrose sent Mr. Finley to help Petitioner in the dish pit. Petitioner stated, “Nigger, I don’t need your help.” Mr. Ambrose asked if there was a problem. Petitioner said, “No, we’re fine.” Mr. Ambrose asked Mr. Finley if everything was all right. Mr. Finley replied, “Yeah, I guess he’s just having a bad day.” Mr. Ambrose returned to his work only to find, five minutes later, that the two men were nose to nose arguing about the fact that Mr. Finley wasn’t washing dishes the way Petitioner liked. Ms. Jenkins, Mr. Ambrose, and Ms. Prescott all testified that they had never seen another employee harass Petitioner and had never heard of such a thing occurring. Petitioner never complained to any of these supervisors about discrimination or harassment of any kind. All three testified that they had never seen male employees kissing one another on the job nor seen any male employee attempt to kiss Petitioner. The three supervisors never heard any employee make comments about Petitioner’s appearing to be a girl. Ms. Jenkins testified that as a gay woman she would absolutely not allow any discrimination based on Petitioner’s gender orientation. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Mojo for his termination. Petitioner offered no credible evidence that Mojo's stated reasons for his termination were a pretext for discrimination based on Petitioner’s gender. Petitioner offered no credible evidence that Mojo discriminated against him because of his gender in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Mojo. There was no credible evidence that Petitioner ever complained to a superior about the alleged harassment.
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 Mojo Old City BBQ did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 23rd day of February, 2015, 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 23rd day of February, 2015.
The Issue The issue to be resolved in this proceeding concern whether the Petitioner's decedent, Barbara J. Taylor, was discriminated against in an employment decision (termination) by the Respondent based upon her gender and alleged disability.
Findings Of Fact The Petitioner, James Saemenes, is the Personal Representative of the Estate of Barbara J. Taylor. Barbara J. Taylor was the Petitioner's sister. Ms. Taylor, at times pertinent to the facts in this case, had been an employee of the Utilities Department of the City of Fort Walton Beach, working in the Utility Wastewater Treatment Facility Laboratory as Laboratory Manager. The Petitioner, Mr. Saemenes, did not participate in the hearing. The City of Fort Walton Beach provides public utilities to its citizens including wasterwater operations. Mr. John Hofstad is employed as the utilities director for the city, and oversees the city's wastewater operation. Mr. Hofstad was Ms. Taylor's supervisor at times pertinent to this case. The wastewater operation is responsible for collection and treatment of raw waste to suitable discharge standards. There are 13 individuals employed at the wastewater treatment facility. The positions consist of one plant supervisor, eight licensed wastewater treatment plant operators, one pre-treatment coordinator, two maintenance employees, and one laboratory manager. Ms. Taylor was the laboratory manager at times pertinent to this case and her immediate supervisor, Mr. Hofstad was responsible for evaluating her work and initiating any discipline against her, if necessary. Her duties included managing the day-to-day activities of the laboratory, collecting samples throughout the facility, analyzing samples, managing the quality assurance and quality control plan required by the State of Florida and associated daily paperwork. Her duties required effective cooperative interaction with other employees of the facility and the city on a daily basis. Over a substantial period of time, Mr. Hofstad received numerous complaints and expressions of concern from almost every employee regarding the appropriateness of Ms. Taylor's conduct while at work. Employees complained that she was intimidating and abrasive toward them. She demeaned fellow members of the staff based upon their educational background or their level of knowledge about the operations and their jobs. Mr. Hofstad counseled Ms. Taylor on a number of occasions regarding her co-workers' concerns. Mr. Hofstad witnessed Ms. Taylor harassing Mr. McDowell, the Pre-treatment Coordinator, while working in his office. Specifically, she physically placed an object in Mr. McDowell's pocket despite his previous request for her to refrain from distracting him. Mr. McDowell became visibly upset when Ms. Taylor thereafter made an obscene gesture towards him as she left the office area. Mr. Hofstad drafted a memorandum on December 6, 1996, pertaining to the aforementioned incident and provided a written disciplinary action form to Ms. Taylor because of it. Mr. Hofstad executed a personnel evaluation regarding Ms. Taylor on December 9, 1996. She received an unsatisfactory rating in the area of cooperation with fellow employees and team-work. Mr. Hofstad gave Ms. Taylor that rating due to numerous employee complaints indicating that Ms. Taylor had initiated confrontations. Thereafter on March 6, 1998, Mr. Hofstad drafted a memorandum regarding a confrontation which had occurred the day before between Ms. Taylor and Mr. James Whitley. Without authorization Ms. Taylor directed Mr. Whitley to stop conducting certain tests because they would interfere with her job. Ms. Taylor possessed no supervisory authority over Mr. Whitley. When Mr. Hofstad intervened in the situation Ms. Taylor spoke to him in a insubordinate loud and hostile fashion. She raised her voice at Mr. Hofstad and stated that he did not know how to do his job much like the other individuals employed by him. Mr. Hofstad considered her tone and manner to be inappropriate and insubordinate. He executed a Notice of Disciplinary Action based on Ms. Taylor's actions and demeanor and gave her a copy. Thereafter on or about May 14, 1998, Mr. Hofstad was again verbally assaulted by Ms. Taylor. She spoke in an enraged, loud, and abusive manner in the presence of several subordinate employees. Ms. Taylor stated that Mr. Hofstad had no control over the laboratory. Following this incident which he also considered insubordination, Mr. Hofstad spoke to the Public Works Director his superior, Mr. Mark Tate, regarding Ms. Taylor's conduct. Mr. Tate reviewed Ms. Taylor's disciplinary history and in conjunction with Mr. Hofstad determined that the best course of action, after having tried graduated discipline was to terminate her employment. Mr. Hofstad and Mr. Tate spoke with the Human Resources Department Director regarding Ms. Taylor's behavior and potential termination. The Director of Human Resources agreed that Ms. Taylor's termination was appropriate considering her history of progressive discipline and current misconduct amounting to repeated insubordination. Thus Ms. Taylor's employment was terminated. Her termination was not based upon her gender. In fact, she was replaced in her position with another female, Ms. Harriett Holloway. The current laboratory manager, Melissa Woodall, is a female. Mr. Hofstad never discouraged Ms. Taylor from filling out complaint forms during the course of her employment. In fact, he provided such forms to Ms. Taylor in the event that she had a complaint. Her termination was not related to any complaint filed by her, or for engaging in any other protected activity such as applying for vocation rehabilitation benefits or assistance. Further, her termination was not related to any health conditions she possessed. Mr. Hofstad at the time was unaware of any disability or health condition endured by Ms. Taylor. He did not perceive her as disabled. She was fully capable of performing the duties of her job in terms of her physical abilities and would have continued to be employed but for the misconduct referenced above. She never requested any accommodations for any disability or impairment in the workplace from Mr. Hofstad or others in a supervisory role. Neither Mr. Hofstad, nor any other witness, described any occasion where Ms. Taylor was harassed by operations staff. According to unrefuted evidence of record, Ms. Taylor was always the harasser of other employees. Moreover, when Ms. Taylor sought assistance from Mr. Hofstad, he promptly addressed her concerns in a reasonable, unbiased way. The Petitioner never testified in this proceeding.
Conclusions Petitioner: No Appearance Respondent: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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, 2007. COPIES FURNISHED: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James P. Saemenes, Personal Representative 46 Higgins Road Brighton, Tennessee 38011-3602
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in the case is whether the termination of Petitioner's employment by Respondent constituted discrimination against Petitioner on the basis of gender.
Findings Of Fact Petitioner is a female, a member of a protected group under applicable law, and was at all times material to this case, employed by Respondent until the termination of employment that is the subject of this dispute. Respondent is an employer as the term is defined by relevant sections of the St. Petersburg Municipal Code and the applicable Pinellas County Ordinance. During the period of time relevant to this dispute, Sam Obinwa owned Respondent. During the period of Mr. Obinwa's ownership, Respondent was a business engaged in providing health care supplies, including pharmaceuticals to customers. Beginning in July 1996, Petitioner was employed as a courier by Respondent. Petitioner was primarily assigned to make deliveries of supplies to Respondent's customers. Respondent also employed a second courier, a male, during this period. At some point during Petitioner's employment, Mr. Obinwa hired an office manager, Kim Henderson. Ms. Henderson became Petitioner's supervisor. Ms. Henderson was responsible for the operation of the office, including receiving customer complaints and resolving employee disputes. Mr. Obinwa testified that he received information related to the office operations from Ms. Henderson and relied upon it in making the decision to terminate Petitioner's employment. According to Mr. Obinwa's testimony, he received complaints regarding Petitioner's job performance and behavior from both customers and Ms. Henderson. Mr. Obinwa testified that he discussed the complaints with Petitioner during her employment. On December 14, 2003, Mr. Obinwa met with Petitioner and explained that her employment was being terminated. As grounds for the termination, Mr. Obinwa, in a termination letter provided to Petitioner, cited complaints about her behavior from both customers and work associates. The complaints included lack of cooperation, abusiveness, failure to follow instructions or to adhere to the delivery schedule, and missed or late medication deliveries. Petitioner asserts that she was terminated on account of gender. There is no credible evidence, direct or indirect, that Respondent's termination of Petitioner's employment was on account of gender. At the time of Petitioner's termination, Respondent employed eight to nine persons, including six to seven females. The employee most similarly situated to Petitioner (the male courier) was not terminated; however, there is no evidence that there were complaints regarding his behavior from either customers or work associates. At the hearing, Petitioner asserted that the male courier generally received the same treatment as did she. The evidence establishes that Petitioner received an additional benefit that was not provided to the male courier. Petitioner was permitted to use a company delivery vehicle for occasional personal transportation. There is no evidence that the male courier was permitted to take the company vehicle for personal use. Petitioner testified that another male employee identified as Herman Jones was hostile towards her and towards other women working for Respondent. Petitioner claimed that Mr. Jones was somehow responsible for her termination. Mr. Jones was a pharmacy technician. Mr. Jones was responsible for imputing prescription information into the computer system and for preparing the medications according to the prescriptions. Prior to being delivered to the customers by the couriers, the medications were checked by a pharmacist. There is no credible evidence that Mr. Jones had any supervisory duties related to Petitioner. There was testimony suggesting that there were personality conflicts between Petitioner and Mr. Jones. There is no evidence that Mr. Jones was involved in Mr. Obinwa's decision to terminate Petitioner's employment, other than the general consideration Mr. Obinwa gave to the complaints from Petitioner's co-workers related to her behavior in the office. At the hearing, Petitioner presented supportive letters from five customers who were apparently pleased with Petitioner's performance. Petitioner made between 100-200 deliveries each week to Respondent's customers. Mr. Obinwa testified that some of the customers to whom Petitioner made deliveries were happy and that others were not. No evidence related to damages to Petitioner was presented during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's complaint be DISMISSED. DONE AND ENTERED this 1st day of December, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2004. COPIES FURNISHED: Stephanie N. Rugg City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731-2842 Suzanne M. Mucklow, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Willie Mae Curry 2702 4th Street, South St. Petersburg, Florida 33705-3641 Donna J. Buchholz, Esquire D. J. Buchholz, P.A. 4320 El Prado Boulevard, 15 Tampa, Florida 33629
Findings Of Fact The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding. In the course of his employment with the Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances. The Petitioner maintains that he first became aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief. The Petitioner again felt that he had suffered disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms. Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent. This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415, Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley. In any event, because both allegations of child abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility. At the master control station, Detention Care Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so. Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline. Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petition of John W. Cohen, Jr. be dismissed in its entirety. DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300 Petitioner's Proposed Findings of Fact 1-4. Accepted, but not necessarily as probative of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-10. Accepted, but not as probative of material issues presented, standing alone. 11. Accepted, but not in itself probative of the material dispositive issues presented. 12-14. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Accepted, but not itself dispositive of material issues presented. 16-23. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself dispositive of material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-28. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as being immaterial. Accepted as to the first clause, but as to the second, rejected as not being entirely in accordance with the preponderant evidence of record. Rejected, as irrelevant. It was not demonstrated that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 D. Ola David Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301 Scott Leemis, Esq. HRS District 4 Legal Office P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issue in this case is whether, on the basis of Petitioner's age, Respondent (a staffing agency) unlawfully discriminated against Petitioner by having him terminated from his position with Respondent's client, in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent inSync Staffing, Inc. ("inSync"), is a company that recruits for, and supplies employees to, its clients, including, as relevant here, NBTY, Inc. ("NBTY"). inSync is an "employment agency" as that term is used in the Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13, infra. inSync does not meet face-to-face with most of the candidates it places with clients. On or around August 19, 2015, a recruiter at inSync forwarded the résumé of Petitioner Adalberto Lopez ("Lopez"), then 75 years old, to NBTY in hopes that NBTY might hire Lopez to fill the position of "QA Floor Inspector – Shift 1," a job that paid $13.50 per hour. About a week later, NBTY interviewed Lopez, and, on September 2, 2015, inSync informed Lopez that NBTY was offering him the job. Lopez accepted the offer. NBTY, not inSync, made the decision to hire Lopez. At all times, inSync acted essentially as a go-between, introducing Lopez to NBTY and helping him apply for the job, informing Lopez of NBTY's training and drug test requirements for new employees, and providing him with documents that NBTY wanted completed and returned in the ordinary course of new-hire onboarding. One of the documents that Lopez was required to sign and submit was the Employment Eligibility Verification (Form I-9), which is used by the U.S. Department of Homeland Security, administrator of the federal E-Verify program, to determine whether an employee is authorized to work in the United States. The E-Verify program provided NBTY with a result of Tentative Nonconfirmation ("TNC"), meaning that there was, at a minimum, some discrepancy between the information provided in Lopez's Form I-9 and that available in other public records. A TNC does not necessarily disqualify an employee from continuing to work, but it does need to be resolved to avoid the possibility of termination. In this instance, there is no persuasive evidence that the TNC led NBTY to take any adverse action against Lopez. There is, moreover, no evidence that inSync took any adverse action against Lopez as a result of the TNC. Lopez's first day of work at NBTY was September 14, 2015. The next day, NBTY terminated Lopez's employment. Nevertheless, Lopez showed up for work on September 16 and was told, again, that he no longer had a job. There is no persuasive evidence that inSync played any role in NBTY's decision to fire Lopez. inSync did, however, communicate this decision to Lopez, telling him that he had "been terminated due to not catching on fast enough." This was the reason for the termination given to inSync by NBTY. There is no persuasive evidence that this was not, in fact, NBTY's reason for firing Lopez. There is no persuasive evidence that NBTY eliminated Lopez's job, but there is, likewise, no evidence that NBTY filled the vacant position after Lopez's termination, nor (it obviously follows) any proof regarding the age of Lopez's successor (assuming NBTY hired someone to replace Lopez). There is no evidence concerning the candidates, if any, that inSync referred to NBTY after Lopez had been fired. Ultimate Factual Determinations There is no persuasive evidence that any of inSync's decisions concerning, or actions affecting, Lopez, directly or indirectly, were motivated in any way by age-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age discrimination could be made. Ultimately, therefore, it is determined that inSync did not discriminate unlawfully against Lopez on the basis of his age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding inSync not liable for age discrimination. DONE AND ENTERED this 26th day of October, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2017.
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
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. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day of November, 2009.
