The Issue Whether Petitioner's suspension in March 2004 and subsequent dismissal in March 2004 were not, in fact, imposed in consequence of her gross insubordination (which insubordination Respondent allegedly used as a pretext for the adverse employment actions), but rather were in truth retaliatory acts taken by Respondent because Petitioner had filed a charge of discrimination against Respondent.
Findings Of Fact The Order Relinquishing Jurisdiction contained a statement of undisputed material facts, which provided as follows: A. [a.] [Petitioner Diane] Scott [("Scott")] was employed as a teacher's aide in the Monroe County Public School System for approximately 13 years. The [Monroe County School] Board [(the "Board"), which is the governing body of Respondent Monroe County School District,] suspended [Scott] without pay in March 2004 pending termination for just cause. Scott timely requested a formal hearing. [b.] On August 18, 2004, Administrative Law Judge Robert E. Meale of the Division of Administrative Hearings ("DOAH") conducted a formal hearing in DOAH Case No. 04-2060 to determine whether Scott's employment should be terminated. Judge Meale issued a Recommended Order on October 25, 2004, holding, on the basis of extensive findings of fact, that Scott had "repeatedly refused to obey direct orders, essentially to allow the school system to function as an educational resource, free from her harassment of other employees trying to do their jobs." Judge Meale recommended that the Board terminate Scott's employment for just cause, i.e. gross insubordination. [c.] On November 16, 2004, the Board entered a Final Order adopting Judge Meale's Recommended Order in its entirety. Scott did not appeal the Final Order. B. [d.] In November 2004, Scott filed with the FCHR and the EEOC a Charge of Discrimination, signed November 12, 2004 (the "Charge"), wherein she alleged that the Board had retaliated against her for having filed an earlier charge of discrimination. The Charge was received by the FCHR on or about November 22, 2004, and docketed as Charge No. 150-2005-00405. [e.] In the Charge, Scott stated the "particulars" of her claim against the Board as follows: I am black. I filed a charge of discrimination under 150-2004-00146. In retaliation, Respondent placed papers in my fie [sic] that pertained to someone else and papers that were not signed by me. In further retaliation, Respondent placed me on suspension. I believe all of the above occurred in retaliation for filing the aforementioned charge in violation of Title VII of the Civil Rights Act of 1964, as amended.[1] Scott also alleged that the unlawful retaliation took place between the dates of August 18, 2004, and August 24, 2004.2 [f.] . . . Charge No. 150-2004-00146 (the "Prior Charge"), which allegedly triggered the Board's allegedly retaliatory acts, had been brought against the Board in November 2003. . . . [To repeat for emphasis,] the retaliation claim asserted in the [present] Charge is based on alleged adverse employment actions that the Board took, allegedly, in response to Scott's filing the Prior Charge in November 2003. [g.] In her Charge Scott alleged that the Board's unlawful retaliation consisted of (a) placing papers in her personnel file that didn't belong there and (b) putting her on suspension. Regarding the allegedly spurious papers, . . . [f]ive . . . are . . . documents pertaining to another teacher's aide in Monroe County whose name is "Diane M. Scott." (Petitioner Scott is also known as Diane Hill Scott but not, so far as the record reveals, as Diane M. Scott.) The papers relating to the "other" Diane Scott are: (1) an Oath of Public Employee form dated December 20, 1996; (2) an Employer's Statement of Salary and Wages dated April 24, 2001; (3) an Employer's Statement of Salary and Wages dated March 13, 2002; (4) a Civil Applicant Response dated December 20, 1996, which notes that the individual (identified as "Diane Marie Scoh") had failed to disclose a prior arrest; and (5) a copy of the school district's anti-discrimination policy, apparently signed by the other Ms. Scott on August 23, 2002. [h.] In addition to these five papers, Scott claims that her personnel file contained an unsigned copy of the school district's anti-discrimination policy, bearing the handwritten note "Diane Hill Scott refused to sign——8/24/00." Scott asserts that before last year's administrative hearing, she had never seen this particular document. Because of that, she alleges, its presence in her file is evidence of discriminatory retaliation. [i.] Regarding the alleged retaliatory suspension [on which the Charge is based in part], Scott [actually] was referring to three separate suspensions: (1) a three-day suspension in May 2003; (2) a three-day suspension in October 2003; and (3) the suspension in March 2004 that was part and parcel of the proceeding to terminate Scott's employment. It is undisputed that Scott was in fact suspended from employment on each of these three occasions. However, [by] a letter to Scott from the Director of Human Resources dated October 3, 2003, [the Board had] formally rescind[ed], as the product of "error and miscommunication," the three-day suspension Scott was to have served that month. [j.] On April 26, 2005, the EEOC issued a Dismissal and Notice of Rights on Scott's Charge against the Board. In this notice, the EEOC stated that it was unable to determine whether the Board had violated Scott's civil rights. Thereafter, on May 12, 2005, the FCHR issued Scott a Right to Sue letter. Scott timely filed a Petition for Relief ("Petition") with the FCHR on June 6, 2005. The FCHR immediately transferred the Petition to DOAH, initiating the instant action. The undersigned hereby adopts the foregoing as findings of fact. Following the principle of estoppel by judgment (discussed in the Conclusions of Law below), it is found that, prior to being suspended from employment in March 2004, Scott repeatedly had refused to obey direct orders; she had been, in other words, grossly insubordinate at work. The evidence in the record is insufficient to persuade the undersigned——and consequently he does not find——that the Board used Scott's gross insubordination as a pretext for taking adverse employment actions, namely suspension and dismissal, against Scott. The evidence is likewise insufficient to establish, and thus it is not found, that the Board in fact suspended and discharged Scott in retaliation for filing the Prior Charge. It is determined, therefore, as a matter of ultimate fact, that the Board did not unlawfully retaliate against Scott when it terminated her employment on the ground that she had been grossly insubordinate, which misbehavior constitutes just cause for firing a teacher's aide, see §§ 1012.01(2)(e) and 1012.33(1)(a), Fla. Stat., and hence is a legitimate, non- retaliatory basis for taking adverse employment action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding the Monroe County School District not liable to Diane Scott for retaliation or unlawful discrimination. DONE AND ENTERED this 11th day of May, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006.
The Issue Whether this cause is barred by a release of all claims.
Recommendation Based on the foregoing Undisputed Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Maurice G. Hargrove, Sr.’s, Petition for Relief from employment discrimination due to a lack of jurisdiction. DONE AND ENTERED this 28th day of September, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2016
The Issue Whether Respondent committed an unfair labor practice by discriminating against Petitioner on the basis of race and retaliating against Petitioner, in violation of the Florida Civil Rights Act, of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).
Findings Of Fact On September 28, 2005, Respondent AirTran Airways hired Petitioner, who is Black, as a customer service agent. During her entire term of employment, Petitioner was assigned to Respondent's station in Fort Lauderdale, Florida. Between January and June of 2006, Petitioner was issued five attendance warnings. During the same period, Petitioner was issued two written warnings that related to other violations of company policy.2 Nevertheless, on August 6, 2007, Petitioner was promoted to the position of station supervisor. Several months after her promotion, Petitioner was issued a "final warning" and suspended for three days. This occurred after an internal fraud investigation revealed that on several occasions, Petitioner received insufficient funds from customers in connection with round-trip and business class upgrades. Following the "final warning," Petitioner's employment was uneventful until February or March of 2008. At that point, Dan Mellgren, who had been employed with Respondent for approximately eight years, transferred to Fort Lauderdale from Chicago and assumed the position of station manager. Petitioner's claims of racial discrimination and retaliation relate solely to Mr. Mellgren. As explained during the final hearing, a station supervisor, the position held by Petitioner, is subordinate to one or more duty managers. In turn, duty managers report to the station manager, and the station manager reports to the director of the southern region. Mr. Mellgren admits that upon taking over as the Fort Lauderdale station manager, he made the decision that "swipe cards," which were limited in number (four or five) and permitted parking in a preferred lot closer to the terminal, would be distributed based on seniority. In addition, one swipe card was reserved for a supervisor who frequently ran work- related errands. As a result of Mr. Mellgren's change in policy, Petitioner lost her swipe card and was thereafter required to park in the regular employee lot. Although Petitioner claims that the reassignment of swipe cards was racially motivated, there is no credible evidence supporting the allegation. According to Petitioner, Mr. Mellgren committed other discriminatory acts. For example, Petitioner claims that she was not permitted to bring her children to the weekly staff meetings (which took place on her day off), while at least one white employee was permitted to do so. In contrast, Mr. Mellgren testified that all employees, including Petitioner, were authorized to bring well-behaved children to a staff meeting if said meeting occurred on the employee's day off. Mr. Mellgren further testified that at no time did he prevent Petitioner from bringing her children to a staff meeting. The undersigned accepts Mr. Mellgren's testimony as credible with respect to this issue. As an additional allegation of discriminatory conduct, Petitioner claims that Mr. Mellgren required her, on one occasion, to work eight hours without a lunch break. While Mr. Mellgren did not deny that this occurred, he explained that in the airline industry, customer service agents and supervisors will occasionally miss lunch breaks during peak hours. Any such missed lunch break is recorded in an "exception log," which enables the employee to obtain additional compensation. The undersigned accepts Mr. Mellgren's explanation concerning the incident and concludes that any deprivation of a lunch break was due solely to busy conditions at the airport. Petitioner further alleges that shortly after Mr. Mellgren's transfer to Fort Lauderdale, Mr. Mellgren forged her name on a security badge sign-out form. Mr. Mellgren testified, credibly, that this did not occur. Pursuant to AirTran Airways policy, which is outlined in the "AirTran Crew Member Handbook," an employee who is experiencing harassment based upon race or other protected classification is directed to handle the situation by first confronting the harasser politely. If the harassment continues, or if the aggrieved employee believes that a confrontation could result in harm, the employee should contact a supervisor or manager. If the complaint involves the employee's supervisor or manager, the employee is directed to take the complaint to the next level of management or to the human resources department. Petitioner admits that she did not report her issues with Mr. Mellgren to AirTran's human resources department or to a level of management superior to Mr. Mellgren. Petitioner did, however, report at least some of her problems with Mr. Mellgren to Everton Harris, a duty manager whom Petitioner trusted.3 There is no evidence that Mr. Harris communicated Petitioner's concerns to the human resources department, a superior, or anyone else. It is undisputed that on March 27, 2008, Petitioner arrived at the Fort Lauderdale station after attending training in Atlanta. Petitioner noticed that one of the gates was busy, so she decided to assist two AirTran customer service agents (Eduardo Baez and Donna Heghinian) who were working the counter. Shortly thereafter, in violation of AirTran policy, a revenue passenger (i.e., a paying customer) was bumped from a flight to accommodate a non-revenue flight attendant employed with Spirit Airlines. In the following days, AirTran's Internal Audit and Fraud Department investigated the incident to determine the identity of the employee responsible for replacing the revenue customer with the non-revenue flight attendant. During the investigation, statements were obtained from Mr. Baez and Ms. Heghinian, both of whom implicated Petitioner as the responsible party. Petitioner also provided a statement in which she vehemently denied responsibility. The findings of the investigation were subsequently provided to Ms. Kellye Terrell, an Employee Relations Manager with AirTran. Ms. Terrell is African-American. After reviewing the findings, Ms. Terrell determined that Petitioner should be separated from her employment with AirTran due to two violations of company policy.4 Ms. Terrell drafted a termination letter, which was provided to Petitioner on April 7, 2008. Although the termination letter was actually signed by Mr. Mellgren, it should be noted that Mr. Mellgren did not participate in the decision to terminate Petitioner. In addition, Mr. Harris, the only person to whom Petitioner communicated any of her complaints regarding Mr. Mellgren, did not participate in Petitioner's termination. At the time of Petitioner's termination, neither Ms. Terrell, nor any other decision-maker was aware of any complaints made by Petitioner to Mr. Harris concerning Mr. Mellgren. The undersigned finds that Respondent's decision to terminate Petitioner was based upon a good faith belief that Petitioner violated company policy by bumping a revenue passenger, as well as Petitioner's previous disciplinary history. Petitioner offered unrebutted testimony that her position was filled by a Caucasian female.5 The undersigned determines, as a matter of ultimate fact, that the evidence in this case is insufficient to establish that Respondent discriminated against Petitioner on the basis of her race. The undersigned also finds, as a matter of ultimate fact, that the evidence is insufficient to establish that Respondent retaliated against Petitioner.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 18th day of August, 2010, in Tallahassee, Leon County, Florida. Edward T. Bauer 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 18th day of August, 2010.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her national origin.
Findings Of Fact Arthrex is a company that designs and manufactures orthopedic surgical tools, implants and devices for surgeons, medical facilities, and hospitals. Arthrex is regulated by the United States Food and Drug Administration ("FDA") and maintains certification through the International Organization for Standardization ("ISO"). Arthrex is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner is a Hispanic female, whose primary language is Spanish. Beginning in June 2001, Petitioner worked in the cleaning and packaging area of Arthrex's production facility. "Cleaning" in this context should not be confused with janitorial services. Petitioner's job was more technical and exacting and involved the maintenance of a sterile, disinfected work area and equipment in the manufacture of items that, in some cases, are surgically implanted in the human body. She worked in the company of 10 to 12 co-workers within a relatively confined space. Arthrex obtains staffing for its cleaning and packaging area through an independent contractor, Randstad, a large employment services company. On June 13, 2003, Petitioner accompanied a friend to the local Randstad office to assist the friend in applying for a job with Arthrex in the cleaning and packaging area. Petitioner became angry with the Randstad representative who performed the screening and testing of Petitioner's friend. Petitioner believed that the Randstad employee decided at the outset not to hire her friend, and so tested the friend on difficult subjects having nothing to do with the Arthrex cleaning and packaging job, such as her ability to use a computer and her ability to "write, read and talk perfect English." Petitioner stated that other applicants were not subjected to the same scrutiny as was her friend and that both she and her friend felt humiliated by the "rude" Randstad employee. Immediately after the job interview, the Randstad representative phoned Margarita Alvarez, the human relations manager for Arthrex, and told Ms. Alvarez that Petitioner had "made a scene" at the Randstad office. Ms. Alvarez asked the Randstad representative to put her complaint in writing, and she would then address the matter with Petitioner. Shortly after the phone call, Ms. Alvarez was conducting an employee relations meeting in her office when Petitioner walked into her office. Petitioner began complaining loudly about the "ridiculous" hiring process employed by Arthrex, waving her hands and stamping her foot in anger. Ms. Alvarez told Petitioner that she would discuss the matter after her meeting was over. Petitioner walked out of Ms. Alvarez's office saying, "Thank you for nothing." Petitioner then proceeded to stamp her way down to her workplace, continuing to display her anger and disrupt the work of the other employees in her area by complaining loudly about Arthrex's hiring practices. Ms. Alvarez testified that Petitioner's behavior violated Arthrex's written policies regarding hostile, disruptive behavior in the workplace. Ms. Alvarez prepared a written warning called "performance correction notice" dated June 17, 2003. The notice described the disruptive behavior Petitioner engaged in on June 13, 2003, and stated that Petitioner was expected to maintain a "friendly work environment" and to express her disagreements with company policy "respectfully[,] . . . in private with [her] immediate supervisor or with Human Resources." The notice further warned Petitioner that any further "unprofessional conduct" (antagonism, disruptive behavior or hostility) could subject Petitioner to a "final warning." On the afternoon of June 18, 2003, Petitioner met with Ms. Alvarez and Lea Custodio, Petitioner's immediate supervisor, who had taken the day off on June 13, 2003. Ms. Alvarez presented Petitioner with the performance correction notice. She explained that while she understood Petitioner's frustration, she could not allow such displays of temper in the workplace. Ms. Alvarez testified that she believed Petitioner understood the situation, and she encouraged Petitioner to write down her thoughts, comments, or corrections before signing the notice. Ms. Alvarez told Petitioner that she could write her response in Spanish, if that would allow her better to express herself. Ms. Alvarez is fluent in Spanish. On June 19, 2003, Petitioner submitted a handwritten note to Ms. Alvarez. Written in Spanish, the note expressed Petitioner's belief that the Randstad representative discriminated against her friend by imposing unreasonable requirements for the cleaning position in question. Petitioner was not disciplined in any way for either the form or content of this note, which was incorporated with the performance correction notice as part of Petitioner's employment file. Petitioner testified that she could not recall having been disciplined for the June 13, 2003, incident. She denied causing a disturbance at the Randstad facility or at her own workplace. She admitted writing the note and submitting it on June 19, 2003, but testified that Ms. Alvarez asked her to document the incident because of other complaints she had received about the Randstad representative. Petitioner's testimony is inconsistent with the documentary evidence, including the self-justifying language of her own handwritten note. Ms. Custodio's testimony corroborated that of Ms. Alvarez's concerning the disciplinary meeting held on June 18, 2003, at which Petitioner was given the performance correction notice and counseled by Ms. Alvarez as to the company's expectations regarding her behavior. Petitioner's testimony as to the June 13, 2003, incident and its aftermath is not credible. On or about August 10, 2003, a personal conflict arose between Petitioner and a co-worker, Pierre Escanio. Petitioner loudly questioned the quality of Mr. Escanio's work. In the cleaning and packaging area, the workers' products were commingled into single lots and sent to Arthrex's quality control division for review. Petitioner claimed to be concerned that Mr. Escanio's poor work would cause quality control to return the entire lot, meaning that everyone would have to redo their work. Ms. Custodio, the supervisor, attempted to calm the situation by telling Petitioner that she would talk to Mr. Escanio about his work. Ms. Custodio did so despite the fact that she had trained Mr. Escanio and knew him to be a competent employee. Ms. Custodio next told Petitioner that she would separate Petitioner's work from that of Mr. Escanio, marking the items so they would know whose work had been rejected by quality control. Despite Ms. Custodio's effort, Petitioner continued to complain. Ms. Custodio finally told Petitioner to stop making these complaints in front of the other dozen or so people in the work area. Ms. Custodio believed that Petitioner was questioning her authority in front of the other employees. She went to Ms. Alvarez to discuss the situation and obtain the assistance of the Human Resources Department in addressing the problem of Petitioner's insubordination. Ms. Custodio told Ms. Alvarez that she could no longer handle the situation with Petitioner. In keeping with the policies of Arthrex's Human Resources Department, Ms. Alvarez investigated the matter, conducting interviews with employees who witnessed Petitioner's behavior. Ms. Alvarez testified that her investigation led her to conclude that "there was a serious problem in the department." After a final consultation with Arthrex's general counsel, Ms. Alvarez recommended that Petitioner's employment be terminated for insubordination. Ms. Custodio agreed with the recommendation. By letter dated August 12, 2003, and signed by Ms. Alvarez, Arthrex terminated Petitioner's employment. The letter stated the following express reasons for Petitioner's termination: Previous written warning referring to disruptive behavior of 6/17/2003. Numerous reports of negative comments about the company and management in front of other employees. Antagonistic behavior with supervisor and coworkers. Petitioner produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. Petitioner's chief claim is that she was terminated for refusing to obey instructions from her supervisors, including Ms. Custodio and Ms. Alvarez, to cease speaking Spanish in the workplace. Both Ms. Custodio and Ms. Alvarez credibly denied giving any such instructions to any Arthrex employee. Arthrex does have a "Language Policy" that requires employees to be proficient in English to ensure that FDA regulations and ISO certification standards are met, because the company "has determined that the English language is the most common and effective means of communications" in the United States. The policy requires employees to communicate business-related information in English, but states that it "is not intended to prevent or discourage any employee from speaking their native language at Arthrex for certain business related matters, on their own time or with regard to non-business matters." The evidence established that all but one or two people in Petitioner's work area were native Spanish speakers and that they were allowed freely to communicate in Spanish in their day-to-day work activities. Employees were encouraged to communicate with their supervisors in their native language, if doing so improved the quality of the information conveyed. Ms. Custodio and Ms. Alvarez each testified that they knew of no Arthrex employee who had ever been disciplined for speaking a language other than English in the workplace. At the hearing, Petitioner repeatedly made reference to the efforts of one lower-level supervisor, Renee Vanderberg, to force the employees in Petitioner's section to refrain from speaking Spanish and confine their work conversations to English. However, the evidence established that once the Human Resources Department learned of Ms. Vanderberg's actions, she was admonished to cease directing the employees to speak English. When Ms. Vanderberg continued to press the issue, Arthrex terminated her employment. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination were limited to those set forth in the termination letter of August 12, 2003.
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 Arthrex Manufacturing did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2005, 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 17th day of May, 2005.
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner, a Caucasian male, was born on March 23, 1949. At the time of the alleged unlawful employment practice at issue in this case, Petitioner was 52-53 years old. Petitioner was employed by Respondent since 1973. He was terminated effective August 15, 2001. Respondent, at all times material to this case, is an employer within the meaning of the Florida Civil Rights Act. Respondent, at all relevant times, is in the business of providing telephone services to individuals and businesses in south Florida and elsewhere. At all relevant times, Petitioner was employed as a Service Technician. Service Technicians are responsible to install and repair telephone equipment in response to customer requests. At all relevant times, Respondent employs individuals as Service Technicians who are older than Petitioner. Many other individuals employed as Service Technicians are over the age of 40 at all times relevant to this case. Beginning in 1997, Respondent began to evaluate its Service Technicians according to a system called "Integrated Technicians Performance Plan [ITP].” The purpose of ITP was to improve customer service by evaluating Service Technicians and the individuals who manage them, on a regional basis, in accordance with standardized performance measures. Service Technicians whose ITP evaluations revealed deficiencies, including Petitioner, were provided assistance pursuant to individualized Technician Development Plans (TDP) and given a reasonable period of time to improve. From the time ITP was implemented in 1997, Petitioner was at all relevant times on a TDP because of deficiencies in his job performance. Petitioner's job performance was consistently deficient from 1997 throughout the remainder of his employment. From 1997 throughout the remainder of his employment Petitioner was provided assistance to help him improve his performance. Despite the assistance provided, Petitioner failed to improve his job performance to minimum levels required of all Service Technicians and required by his TDP. By August 2001, supervisors responsible for the training, evaluation and supervision of Service Technicians had determined that Petitioner did not maintain his job performance at the minimum levels required of Service Technicians and did not fulfill the requirements of his TDP. Accordingly, Respondent terminated Petitioner’s employment. Petitioner could have been terminated earlier than he was. In consideration of the fact that Petitioner had been a long-time employee of the company, he was given more time to improve his performance than company policy required. Petitioner presented no persuasive evidence that age played any role in Petitioner's termination. Petitioner did not prove that after he was terminated, a younger worker replaced him. Similarly, Petitioner presented no persuasive evidence that he is disabled within the meaning of the Florida Civil Rights Act, or that any disability played any role in his termination. Petitioner alleged his disabilities as “war wounds, tinnitus and hearing loss.” Petitioner never informed Respondent that he suffered from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Furthermore, Petitioner never informed Respondent that the disabilities alleged would in any way prevent him from performing his job as a Service Technician, or from satisfying the TDP developed to assist in ameliorating his performance deficiencies. Petitioner never informed Respondent that the alleged disabilities substantially impacted any major life function, or affected Petitioner’s ability to perform the essential functions of his Service Technician job. Respondent was not, at relevant times, on notice that Petitioner might suffer from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Respondent never perceived Petitioner to be disabled at times relevant to this case. During his employment as a Service Technician, Petitioner did not indicate a need for or make any request to Respondent for accommodations for any physical condition. Finally, Petitioner alleged that his termination was in retaliation for complaints he had filed in another forum. This allegation was not proved; rather, the evidence established that Petitioner never opposed any practice which is an unlawful employment practice under the Florida Civil Rights Act. In sum, the evidence established that Respondent discharged Petitioner solely on account of inadequate job performance as a Service Technician, and not on account of his age, disability, or in retaliation for complaints filed in another forum.
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 argument of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of October, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2005.
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner on the basis of her sex or age, or in retaliation for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment based on her sex or age.
Findings Of Fact Respondent Frito-Lay, Inc. ("Frito-Lay"), makes and sells snack foods, including many familiar brands of chips. Petitioner Frances G. Danelli ("Danelli") is a former employee of Frito-Lay. Frito-Lay initially hired Danelli in or around 1998 as a packer for its West Valley, Utah, plant. When Danelli's husband was transferred to Florida, she took a job for Frito-Lay in Pompano Beach, Florida, and later moved to the company's West Palm Beach Distribution Center as a route sales representative ("RSR"). Danelli worked in Florida as a Frito-Lay RSR for more than 15 years, and her routes eventually included such large stores as Publix, Walmart, Winn-Dixie, and Target.1/ RSRs sell and deliver Frito-Lay products to retail stores, and these stores, in turn, sell the products to consumers. RSRs are responsible, as well, for presenting the company's products to shoppers in the best way possible to increase sales. So, RSRs not only sell and deliver products to stores, but they also unload the products, stock the shelves, set up displays, and remove unsold items whose sell-by dates have expired. RSRs are paid an hourly wage plus commissions. RSRs are required to compete for sales against other companies' vendors, who (like Frito-Lay's personnel) are trying to place as many of their products as possible onto the shelves of the snack food aisle. Shelf space is essential for growing sales, and competition for product placement can be fierce. There is no dispute that Danelli's performance as an RSR was fine, perhaps even exemplary. Frito-Lay considered her to be a good employee. Danelli went to work early each morning, usually arriving at the warehouse by 4:00 a.m. so that she could get to her first store by 5:00 a.m., which would give her a head start on other vendors. When Danelli got to the warehouse, she would clock in on her handheld computer, which she also used to track the goods she delivered to each store. Upon returning to the warehouse, she had paperwork to complete and print from the handheld computer. In 2013, Frito-Lay started requiring drivers of delivery trucks over a certain size, including RSRs such as Danelli, to comply with U.S. Department of Transportation ("DOT") regulations. As relevant, these regulations require an RSR to take at least a ten-hour break before driving a commercial vehicle, and they prohibit an RSR from driving a commercial vehicle after 14 consecutive hours on duty. Frito-Lay programmed its employees' handheld computers so that an employee subject to the DOT regulations would receive a conspicuous warning if he or she attempted to clock in to work less than ten hours after last going off duty. As Danelli testified at hearing, if the computer told her to wait, she would go to the warehouse, pick up some product, fix her truck, and then sign in when the handheld said she could go. Evidently, however, to get the warning, an employee needed to log on as a "regulated" employee; if, by mistake, a "regulated" employee logged on as "non-regulated," she would not get the warning. Danelli found it difficult to comply with the DOT regulations, which led to Frito-Lay's imposing discipline against her in accordance with the company's Corrective Action Process set forth in its Sales National RSR Handbook, which governed Petitioner's employment. The handbook prescribes a process of progressive discipline that begins with "coaching," which is a form of pre- discipline. As the name suggests, a "coaching" is, essentially, a nondisciplinary intervention whose purpose is to correct an issue before the employee's conduct warrants stronger measures. If coaching is ineffective, the Corrective Action Process calls for increasingly severe steps of discipline. The steps of discipline consist of a Step 1 Written Reminder, a Step 2 Written Warning, a Step 3 Final Written Warning, and a Step 4 Termination. The particular discipline to be imposed depends upon the severity of the infraction and the step of discipline, if any, the employee happens to be on when the infraction is committed. Steps of discipline remain "active" for six to nine months, depending on the step. If the employee does not commit any further disciplinary infractions during the active period, the step "falls off." If the employee commits another disciplinary infraction within the "active" period, however, he or she moves to the next disciplinary step in the Corrective Action Process. On June 5, 2014, after having previously been coached to maintain compliance with the DOT regulations, Danelli received a Step 1 Written Reminder for four violations of the 10-hour rule. She did not appeal this discipline. On July 25, 2014, Danelli received a Step 2 Written Warning for a new violation of the 10-hour rule. Once again, Danelli did not appeal the discipline. On October 7, 2014, Danelli was given another coaching, during which she was informed that (i) an investigation into her DOT hours was in process, and (ii) the company was concerned that she might be getting assistance on her route from her husband in violation of the RSR Performance Standards. On January 27, 2015, Danelli received a Step 3 Final Written Warning for violating the 14-hour rule. She did not appeal this discipline. Under the Corrective Action Process, a Step 3 Final Written Warning remains "active" for nine months and is the final step prior to a Step 4 Termination. On May 2, 2015, Danelli committed another DOT violation. Because she was already on a Step 3 Final Written Warning, she was suspended pending further investigation. Danelli maintains that this violation, and others, resulted from her making a simple mistake with the handheld computer, namely failing to log on as a "regulated" employee, which cost her the electronic warning she otherwise would have received. She points out, too, that in this instance, the violation was minor, merely clocking in ten minutes early. These arguments are not wholly without merit, and if Frito-Lay had fired Danelli for a single, ten-minute violation of the DOT regulations, the undersigned would question the company's motivation. But that is not what happened. Danelli did not just violate the ten-hour rule once or twice, but many times, after multiple warnings, and in the face of increasingly serious disciplinary steps. Further, Frito-Lay did not terminate Danelli's employment over this latest violation of the ten-hour rule, even though it would have been justified in doing so within the parameters of the Corrective Action Process. Instead, the company placed Danelli on a Last Chance Agreement. Last Chance Agreements are not specifically provided for in the Corrective Action Process but are used, at the company's discretion, as a safety valve to avoid the occasional unfortunate termination that might result from strict adherence to rigid rules. In this regard, the agreement given to Danelli, dated May 15, 2015, stated as follows: We strongly considered [terminating your employment]. However, due to the unique facts and circumstances involved here, as well as your 15 years of service with the Company, the Company is willing to issue this Last Chance Warning. This step is over and above our normal progressive disciplinary process, and is being issued on a one-time, non-precedent setting basis. . . . [A]ny subsequent violations by you may result in discipline up to and including immediate termination. More specifically, any future violations [of the DOT regulations] will result in your immediate termination. As Danelli put it, the Last Change Agreement was a "sign of grace" from Frito-Lay. By its terms, it was intended to be "active and in effect for a period of 12 months." The undersigned pauses here to let the Last Chance Agreement sink in, because the fact that Frito-Lay did not fire Danelli in May 2015 when——for objective, easy-to-prove reasons, after a by-the-book application of progressive discipline——it clearly could have, is compelling evidence that the company was not harboring discriminatory animus against Danelli. After all, if Frito-Lay had wanted Danelli gone because of her age or her gender, why in the world would the company not have jumped at this golden opportunity, which Danelli had given it, to fire her with practically no exposure to liability for unlawful discrimination? The irony is that by showing mercy, Frito-Lay set in motion the chain of events that led to this proceeding. In or around November of 2015, Danelli underwent surgery, which required her to take some time off of work. For several years before this leave, Danelli's route had consisted of a Super Walmart and two Publix stores. When she returned, the Super Walmart had been assigned to another RSR, and to make up for its loss, Danelli's supervisor, Stanley Gamble, put a third Publix grocery on Danelli's route, i.e., Publix #1049 located in Tequesta, Florida. Danelli was acquainted with one of the managers at the Tequesta Publix, a Mr. Morgan. On her first day back, Danelli and Mr. Gamble went to that store, where Mr. Morgan told Mr. Gamble that he was "glad Frances is here." Mr. Morgan had complained to Mr. Gamble about the previous RSR, who left the store "all messed up," according to Mr. Gamble. Danelli also met Sarah Oblaczynski, the store's "backdoor receiver," which is the Publix employee who checks in merchandise. On her new route, Danelli usually went to the Tequesta store first, early in the morning. She soon ran into a vendor named Tony who worked for Snyder's of Hanover ("Snyder's"), a snack food company that competes with Frito-Lay. From the start, Tony was nasty to Danelli and aggressive, telling her that "there is no space" for two vendors. Tony was possessive about shelf space within the store, as well as the parking space close to the store's loading dock. Danelli thought, because of Tony's behavior, that he might be using drugs. On Tuesday, April 6, 2016, Petitioner had an argument with Tony over the shelf space that the store manager previously had awarded to her for the display of Frito-Lay products. Tony asserted that he had been promised the same space and said to Danelli, "You're going to take that stuff out of the shelf." Danelli told him, "No, Morgan said that's still my space." At this, Tony began cursing and pushed Danelli's cart into her, yelling, "That fucking Morgan!" Danelli later spoke to Mr. Morgan, who assured Danelli that the shelf space in question was hers and said he would leave a note to that effect for Ms. Oblaczynski. There is a dispute as to when Danelli reported the forgoing incident to Frito-Lay. She claims that, before the end of the day on April 6, she told Mr. Gamble, her supervisor, all about the matter, in detail, and requested that someone be assigned to accompany her on her route the next day because Tony planned on taking her shelf space. According to Danelli, Mr. Gamble just laughed and said he did not have anybody to help her. Mr. Gamble testified, to the contrary, that Danelli had neither reported the April 6, 2016, incident to him nor asked for any assistance. (Danelli admits that she did not report the incident to Mr. Canizares, sales zone director, or to Human Resources ("HR")). Without written documentation regarding this alleged discussion, it is hard to say what, if anything, Danelli reported on April 6, 2016. It is likely that Danelli did complain to Mr. Gamble about Tony on some occasion(s), and might well have done so on April 6. What is unlikely, however, is that Danelli notified Mr. Gamble that she felt she was being sexually harassed by Tony. Tony's boorish and bullying behavior, to the extent directed at Danelli, seems to have been directed to her qua competitor, not as a woman. At the very least, the incident is ambiguous in this regard, and one could reasonably conclude, upon hearing about it, that Tony was simply a jerk who resorted to juvenile antics in attempting to gain the upper hand against a rival vendor. The undersigned finds that if Danelli did speak to Mr. Gamble about Tony on April 6, he—— not unreasonably——did not view the incident as one involving sexual harassment. As far as Mr. Gamble's declining to provide Danelli with an escort, assuming she requested one, his response is reasonable if (as found) Mr. Gamble was not clearly on notice that Danelli believed she was being sexually harassed. Danelli, after all, was by this time an experienced and successful RSR who undoubtedly had encountered other difficult vendors during her career. Indeed, as things stood on April 6, a person could reasonably conclude that Danelli in fact had the situation under control, inasmuch as Mr. Morgan had clearly taken Danelli's side and intervened on her behalf. What could a Frito-Lay "bodyguard" reasonably be expected to accomplish, which would justify the risk of escalating the tension between Tony and Danelli into a hostile confrontation? During the evening of April 6, 2016, Danelli talked to her husband about the problem at Publix #1049, and they decided that he would accompany her to the store the next morning before reporting to his own work, to assist if Tony caused a scene. On April 7, 2016, Danelli's husband drove to Publix #1049 in his own vehicle. Although no longer an employee of the company, Danelli's husband entered the store wearing a Frito-Lay hat, and he stayed in the snack aisle while Danelli went to the back to bring the order in. Ms. Oblaczynski, the receiver, presented Tony with a note from Mr. Morgan stating that Danelli's products and sales items were assigned to aisle one. In response, Tony started swearing about Mr. Morgan and the denial of shelf space, made a hand gesture indicative of a man pleasing himself, and told Ms. Oblaczynski that "they can take a fly[ing] F'n leap." Tony had made this particular hand gesture about Mr. Morgan on a number of previous occasions, in front of both men and women. Mr. Danelli left to go to work once Danelli's product was placed, and she left to go to the next store on her route. When Danelli returned to the warehouse, she went to Mr. Gamble's office and told him about the April 7, 2016, incident. According to Danelli, Mr. Gamble laughed in response. Danelli asked Mr. Gamble if the company would conduct an investigation, and he said yes. She recalls that every day thereafter, she asked Mr. Gamble if he had heard anything because she thought "we [Frito-Lay] were investigating" and that HR was on top of it. Danelli admits, however, that she "intentionally" did not tell Mr. Gamble that her husband had accompanied her to Publix #1049 to assist her in the store that morning. She did not report this detail because she knew it was "bad." In conflict with Danelli's account, Mr. Gamble testified that Danelli did not report that Tony made a sexual gesture in front of her or used coarse or profane language in her presence on April 7, 2016. The undersigned finds that Mr. Gamble most likely did not laugh at Danelli or otherwise treat her dismissively upon hearing her report of the incident. If Mr. Gamble had believed the matter were so trivial or amusing, he would not likely have agreed to investigate. The undersigned finds, further, that however Danelli described the incident, she did not make it clear to Mr. Gamble that she perceived Tony's behavior as a form of sexual harassment. Danelli did not make a formal written complaint to that effect at the time, and the situation at Publix #1049 was, at the very least, ambiguous. More likely than not, Mr. Gamble viewed the troublesome vendor from Snyder's as an unwelcome business problem to be dealt with, not as a perpetrator of unlawful, gender-based discrimination. To elaborate, putting Tony's "sexual gesture" to one side momentarily, the rest of his conduct, even the cursing, while certainly objectionable, is not suggestive of sexual harassment; it is just bad behavior. Tony's temper tantrums and outbursts no doubt upset Danelli and others, but that does not turn them into gender discrimination. Further, Danelli seems to have handled the situation well until she resorted to self-help on April 7, 2016. The responsible Publix employees were already aware of the problem, and in due course, they complained to Snyder's, which unsurprisingly removed Tony from that store. Meantime, had Danelli felt physically threatened or afraid as a result of Tony's more aggressive antics, she (or Publix) could have called the police; this, indeed, would have been a safer and more reasonable alternative to bringing along her husband or another civilian for protection, which as mentioned above posed the risk of provoking a fight, given Tony's volatility. Ultimately, it is Tony's "sexual gesture" that provides a colorable basis for Danelli's sexual harassment complaint. But even this gives little grounds for a claim of discrimination, without more context than is present here. To be sure, the "jerk off gesture" or "air jerk" is obscene, and one would not expect to see it in polite company or in the workplace. Yet, although it clearly mimics a sexual practice, the air jerk is generally not understood as being a literal reference to masturbation. That is, the gesture is not typically used to convey a present intention to engage in masturbation or as an invitation to perform the act on the gesturer. Rather, the jerk off gesture usually signifies annoyance, disgust, disinterest, or disbelief. As with its cousin, the "finger" (or bird) gesture, the sexual connotations of the air jerk are (usually) subliminal. Here, there is no allegation or evidence that Tony's jerk off gesture was undertaken in pursuit of sexual gratification or was intended or perceived as a sexual advance on Danelli (or someone else)——or even as being overtly sexual in nature. (Obviously, if the evidence showed that, under the circumstances, Tony was, e.g., inviting Danelli to participate in sexual activity, this would be a different case. The undersigned is not suggesting, just to be clear, that the air jerk gesture is inconsistent with or could never amount to sexual harassment, but only that it is not unequivocally a sign of such harassment, given its commonly understood meanings.) To the contrary, it is clear from the surrounding circumstances that Tony made the gesture to indicate that he regarded Mr. Morgan's note as pointless and annoying. It was roughly the equivalent of giving them the bird, albeit arguably less contemptuous than that. For these reasons, the undersigned finds it unlikely that, assuming Danelli described the gesture (which is in dispute), Mr. Gamble thought Danelli was complaining about sexual harassment, as opposed to a very difficult vendor. On April 13, 2016, Mr. Gamble visited Publix #1049 and spoke to Ms. Oblaczynski about the situation. During this conversation, Ms. Oblaczynski stated that the "Frito-Lay people" did nothing wrong. She further specified that "the person [Danelli] had with her did nothing wrong." After speaking with Ms. Oblaczynski, Mr. Gamble met with Danelli while she was servicing her second account. Right off the bat, Mr. Gamble asked Danelli who was with her at Publix #1049 on April 7, 2016. She eventually admitted that her husband was with her in the store that day. Aware of the seriousness of her offense and the active Last Chance Agreement, Danelli asked Mr. Gamble, several times, if she would be fired. That same day, Mr. Gamble called Carlos Canizares to tell him what he had learned. Mr. Canizares instructed Mr. Gamble to stay with Danelli while she finished servicing her accounts and then to obtain a written statement from her about the incident. Later on April 13, 2016, Danelli provided a written statement in which she confirmed that her husband had been working with her at Publix #1049 the previous week. Danelli has since described this statement as a "full written account of the harassment [and] rude sexual gestures." Danelli knew, of course, that HR would review her statement, and yet she said nothing therein about having complained to Mr. Gamble or any supervisor about harassment generally or Tony in particular; about Tony's use of course or improper language; or about having requested an escort to help keep Tony in line. On the instructions of the company's HR department, Mr. Gamble conducted an investigation into the "rude sexual gesture" about which Danelli had complained. Specifically, he called Mr. Morgan, the Publix manager, and asked him about the incident. Mr. Gamble also requested that he be allowed to review any videotapes and documents concerning the incident. Mr. Morgan informed Mr. Gamble that Publix was investigating the matter. Mr. Gamble's request to allow Frito-Lay access to Publix videotapes and documents was, however, turned down. Tony's boorish behavior aside, the fact remained that Danelli, without prior approval, had allowed a non-employee to perform work or services for Frito-Lay at one of the stores on her route, which the RSR Performance Standards specifically prohibit without express authorization. RSRs who are found to have permitted non-employees to accompany them on their routes are either discharged or issued multiple steps of discipline, as Danelli knew. Because Danelli violated this rule while on an active Last Chance Agreement, Frito-Lay decided to terminate her employment. On April 26, 2016, Mr. Canizares met with Danelli to inform her that she was fired. Danelli timely appealed her termination pursuant to the company's Complaint and Appeal Procedure, electing to have her appeal decided by a neutral, third-party arbitrator. The arbitration hearing took place in January 2017. Three months later, the arbitrator ruled that Danelli's termination had been proper and carried out in accordance with Frito-Lay's employment policies. Danelli does not presently deny that she violated the DOT regulations and the company policy forbidding the use of non-employees as helpers while on duty, nor does she dispute that Frito-Lay had sufficient grounds for imposing the disciplinary steps leading to the Last Chance Agreement. Indeed, she does not contend that it would have been wrongful for Frito-Lay to have fired her in May 2015 instead of offering the Last Chance Agreement. Her position boils down to the argument that because Frito-Lay could have exercised leniency and not fired her for bringing her husband to work at Publix #1049 (which is probably true2/), its failure to do so can only be attributable to gender or age discrimination. Put another way, Danelli claims that but for her being a woman in her 50s, Frito-Lay would have given her another "last chance." This is a heavy lift. As circumstantial evidence of discrimination, Danelli points to the company's treatment of another RSR, a younger man named Ryan McCreath. Like Danelli, Mr. McCreath was caught with a non-employee assisting him on his route. Unlike Danelli, however, Mr. McCreath was not on any active steps of discipline at the time of the incident, much less a Last Chance Agreement. Although Mr. McCreath's disciplinary record was not unblemished, Frito-Lay did not terminate his employment for this violation of the RSR Performance Standards. Instead, he received three steps of discipline and was issued a Final Written Warning. Mr. McCreath's situation is distinguishable because he was not under a Last Chance Agreement at the time of the violation. Moreover, it is not as though Mr. McCreath got off scot-free. He received a serious punishment. Danelli could not have received a comparable punishment for the same offense because she was already beyond Step 3; her record, unlike his, did not have room for the imposition of three steps of discipline at once. The McCreath incident does not give rise to a reasonable inference that Frito-Lay unlawfully discriminated against Danelli when it terminated her employment for committing a "three-step violation" while on an active Last Chance Agreement. There is simply no reason to suppose that if Danelli, like Mr. McCreath, had not had any active steps of discipline when she violated the rule against having non- employees provide on-the-job assistance, Frito-Lay would have terminated her employment for the April 7, 2016, infraction; or that if Mr. McCreath, like Danelli, had been on a Last Chance Agreement when he violated the rule, Frito-Lay would have issued him a Final Written Warning in lieu of termination. Ultimate Factual Determinations There is no persuasive evidence that any of Frito- Lay's decisions concerning, or actions affecting, Danelli, directly or indirectly, were motivated in any way by age- or gender-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age or gender discrimination could be made. There is no persuasive evidence that Frito-Lay took any retaliatory action against Danelli for having opposed or sought redress for an unlawful employment practice. There is no persuasive evidence that Frito-Lay committed or permitted sexual harassment of Danelli or otherwise exposed her to a hostile work environment. Ultimately, therefore, it is determined that Frito-Lay did not discriminate unlawfully against Danelli on any basis.
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 Frito-Lay not liable for gender or age discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 11th day of July, 2018, 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 11th day of July, 2018.
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 27th day of October, 2004.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 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
The Issue Whether the Petitioner was the victim of employment-related discrimination based on his race, or in retaliation for participation in activity protected by Chapter 760, Florida Statutes.
Findings Of Fact This matter arose on April 14, 2009, when the Petition for Relief herein was filed with the Commission. The dispute was forwarded to the undersigned Administrative Law Judge at the Division of Administrative Hearings and set for hearing on June 1, 2009. The case was continued at the request of the Petitioner, allegedly because of the need to attend a funeral, and was re-noticed for hearing for September 8, 2009. No further communication from the Petitioner, verbal or written, was thereafter filed or received by the office of the undersigned. The cause came on for hearing, as noticed, on September 8, 2009. The Respondent appeared at the hearing, through counsel, and was prepared to proceed with its witnesses and evidence. The Petitioner never made an appearance, even after the Respondent, its witnesses, and the undersigned waited for approximately one-half hour. There has been no communication from the Petitioner, with the Respondent or with the office of the undersigned, or by any filing from the Petitioner, which would provide any justification for the failure to appear and prosecute his claim. The Notice of Hearing was served on the Petitioner at his last-known address of record. Because the Petitioner produced no proof at all concerning his discrimination claim, no facts can be found regarding the merits of the action. The Respondent does not have the burden of proof in this case and was therefore not required to present its evidence, although it was prepared to do so. In view of this circumstance, the hearing was adjourned. The Respondent seeks attorney fees and costs, by a motion filed post-hearing (and Ore Tenus). The basis for the motion is that the Petitioner participated in this proceeding for an improper purpose. § 120.595, Fla. Stat. (2009). There has been no response to the motion. The Respondent alleges in the motion that this case was set for hearing on June 3, 2009, and continued based on the Petitioner’s unsubstantiated need to attend a funeral. The Order granting the continuance required the parties to confer about new hearing dates within a time certain. The Petitioner, however, did not thereafter communicate or cooperate with the Respondent’s counsel. The undersigned noticed the case for hearing for September 8, 2009. No motion for continuance, or any other communication was filed by, or received from the Petitioner before the hearing was convened. In the meantime, a companion case, before Judge Diane Cleavinger, Case No. 08-5374, proceeded to hearing, with a Recommended Order being entered on May 29, 2009. Judge Cleavinger found that the claim of discrimination, based on race and on alleged retaliation for engaging in “protected activity,” had not been established. Although that case involved a differently named Respondent (the present Respondent’s staffing service), the facts and the claimed discriminatory conduct are the same. The Recommended Order was adopted in the Commission’s Final Order Dismissing Petition for Relief from an Unlawful Employment Practice, entered on August 18, 2009. The Petitioner was served with a copy of that Recommended Order and Final Order, and thus is charged with knowledge that the same factual claim of discrimination had not been proven and had been dismissed, well before the September 8th hearing in this case. The Petitioner, however, never communicated with counsel for the Respondent, nor the Division of Administrative Hearings in spite of the fact that a Final Order had been entered to the effect that BR Williams Trucking had not discriminated or retaliated. The Respondent thus prepared for that hearing and attended prepared to present its case. As noted above, the Petitioner failed to appear and failed to respond to the subject motion. The allegations of the motion are accepted as true.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief with prejudice. Jurisdiction is retained for entry of an Order awarding attorney’s fees and costs, upon the Respondent’s submittal of supporting documents, by affidavit, within ten days of the date hereof. DONE AND ENTERED this 29th day of October, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2009. COPIES FURNISHED: Shaina Brenner, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Melvin Butler 333 Barbara George Lane Quincy, Florida 32352 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 The issues in this case are: (1) whether Petitioner filed her complaint with the Florida Commission on Human Relations within 365 days of the alleged discriminatory event; and (2) whether Petitioner requested an administrative hearing within 215 days of the filing of her complaint.
Findings Of Fact Petitioner, Earlene Johnson, is an African-American. Prior to December 1996 Ms. Johnson filed a grievance when Respondent, Chautauqua Office of Psychotherapy and Evaluation (hereinafter referred to as "Chautauqua"), failed to promote her. On December 4, 1996, Ms. Johnson was terminated from employment with Chautauqua. At some time after her termination, Ms. Johnson engaged legal counsel with the intent of filing a complaint of discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Toward this end, Ms. Johnson signed an Intake Questionnaire and an Affidavit on October 30, 1997. No copy of the Intake Questionnaire or Affidavit was provided by the Commission to Chautauqua within five days of their receipt. On May 4, 1998, more than one year after the alleged acts of discrimination, Ms. Johnson was sent a Charge of Discrimination by Joe Williams, an Intake Counselor for the Commission. Mr. Williams instructed Ms. Johnson of the following in the cover letter which accompanied the Charge of Discrimination: In order for the Commission to proceed further with this matter, you must: Review the complaint; Sign the complaint in the designated spaces in the presence of a notary public; Return the signed complaint to this office in the enclosed self-addressed envelope. Because a complaint of discrimination must be filed within the time limitation imposed by law (in most cases the limitation is 365 days from the date of the alleged discriminatory act), I urge you to complete these three steps as soon as possible. . . . . Ms. Johnson signed the Charge of Discrimination sent to her by Mr. Williams on the date it was sent, May 4, 1998. Ms. Johnson's Charge of Discrimination was not, therefore, filed within 365 days of the date of the last act of discrimination alleged by Ms. Johnson: Ms. Johnson's termination from employment on December 4, 1996. When the Commission failed to complete its investigation of Ms. Johnson's Charge of Discrimination within a reasonable period of time, Ms. Johnson requested an administrative hearing by letter dated August 3, 1999. Ms. Johnson's request for hearing was made one day short of one year and three months after the Charge of Discrimination was filed with the Commission. The Commission filed Ms. Johnson's request for hearing with the Division of Administrative Hearing on September 14, 1999. Chautauqua filed a Motion to Dismiss Petition. An Order to Show Cause was entered after Ms. Johnson failed to respond to the Motion. Ms. Johnson was ordered to answer the following questions: Did the events that Petitioner believes constitute discrimination occur on or before December 4, 1996? If not, when did the events take place? Did Petitioner file a Charge of Discrimination with the Florida Commission on Human Relations on or about May 4, 1998 (a copy of a Charge of Discrimination which appears to have been filed by Petitioner is attached to this Order.) If not, when was it filed? If the Charge of Discrimination filed with the Florida Commission on Human Relations was filed more than one year after the events which Petitioner believes constitute discrimination occurred, why wasn't the Charge filed sooner. Petitioner should provide a detailed answer to this question. Ms. Johnson responded to the questions asked in the Order to Show Cause as follows: The events that petitioner believe [sic] constitutes discrimination occurred before and on December 4, 1996. Petitioner signed a complaint of Discrimination which was signed on October 30, 1997 which was filed by Petitioner's former Lawyer. Which a copy is attached [sic]. Petitioner's Lawyer filed a charge of Discrimination less than one year before the events which the Petitioner believes constitutes [sic] Discrimination. Which a copy is attached [sic]. Petitioner's former Lawyer [sic] address and phone number is [sic] attached. Attached to Ms. Johnson's response to the Order to Show Cause was a copy of an Affidavit and an Intake Questionnaire signed October 30, 1997, a letter dated January 10, 1998, from Ms. Johnson's legal counsel, and the May 4, 1998, letter from Mr. Williams asking Ms. Johnson to sign a Charge of Discrimination. It is clear from Mr. Williams' letter that no Charge of Discrimination was filed by Ms. Johnson with the Commission until more than 365 days after the alleged act of discrimination, December 4, 1996.
Recommendation Based upon 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 complaint of discrimination filed in this case by Earlene Johnson. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 24th day of May, 2000. COPIES FURNISHED: Earlene Johnson 185 Cook Avenue DeFuniak Springs, Florida 32433 Robert P. Gaines, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
