Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on August 30, 1984 and was issued Certificate Numbers 16-84-002-03. In 1988, Respondent was employed as a uniformed deputy by the Alachua County Sheriff's Department ("ACSD"). Respondent lived at her apartment without paying rent, having executed an agreement to park her patrol car at the apartment complex; to ride through the parking lot periodically; and to be available if the resident manager needed her. The resident manager was Karen Elwood. The security lease agreement between Respondent and the apartment complex required thirty (30) days' notice by either party to revoke. The apartment complex was in an area of the City of Gainesville patrolled by the Gainesville Police Department During this period, Respondent and her husband had her children and his children, together with other members of the family, living at the apartment, at least on the weekends. Because of overlaps in stay, the number of persons at the two-bedroom apartment was excessive. Ms. Elwood pointed out that this was a potential problem but did not object as long as Respondent was providing security services to the apartment complex and Ms. Elwood. Ms. Elwood and her husband were the only whites living in a predominantly black apartment complex. Respondent's experience at the apartment complex was that everyone turned to her for assistance at all hours of the day and night. She was regularly taken away from her own family by neighbors to resolve problems in the complex, to include arrests. This was a source of rancor with the GPD, who felt that they had primary jurisdiction. During the summer of 1988, Respondent was called from her apartment at night by a neighbor's child, who advised Respondent that his father was threatening his mother with a knife. Respondent called the GPD and reported the incident and advised them that she was responding, dressed in civilian clothes, and was armed. Respondent was dealing with the domestic problem when GPD officers arrived and disarmed her not realizing that she was a police officer. Respondent was counseled by her superiors at the ACSD to resolve the matter of her work at the apartment complex because it was creating problems and discord with the GPD. Respondent talked with her husband, a naval petty officer, about stopping her services to the landlord and paying regular rent to prevent the disruptions which plagued them and were potentially dangerous. Respondent's husband agreed that she needed to stop working at the apartment complex. On or about August 1, 1988, Respondent and her husband went to the Naval Relief Society ("NRS") in Jacksonville, Florida, and made application for a loan. The NRS is a charitable nonprofit organization which provides financial help and assistance to naval and marine personnel and their families by providing them with loans. Respondent made representations to Janet Glasgow, a case worker at the NRS, that she did not have enough money to pay certain expenses, including her rent, utility bill, car insurance, and food shopping. Respondent did not have the money because she had paid an outstanding judgment against her arising from a loan on the car of her ex-husband. Respondent's attorney told her that she should pay the judgment or the bank's attorney could garnish her wages. Respondent showed Ms. Glasgow her $1,424.60 paycheck marked "VOID". Respondent told Ms. Glasgow what her attorney had told her. Ms. Glasgow thought Respondent's wages had been garnished. Although the Respondent's wages had not been garnished, the Respondent was no less in need of money because of paying the judgment. Respondent represented to Ms. Glasgow that she was concerned that she would lose her job if the ACSD found out about her financial difficulties. Respondent also represented to Ms. Glasgow that her rent was $375.00. The Respondent provided to Ms. Glasgow the name and telephone number of her resident manager. Ms. Glasgow was free to call Ms. Elwood but did not do so. Ms. Glasgow provided Respondent's husband with a loan totaling $817.13. Simultaneously, Respondent's husband executed an allotment from his Navy pay to repay the loan. The loan was provided by NRS in the form of checks to specific payees. These checks were written to: Payee Amount 1. Food For Less $100.00 2. Food For Less 75.00 3. Karen Elwood 375.00 (Resident Manager) 4. Gainesville Regional 170.18 Utilities 5. Southern Bell 42.00 6. ASPI (Car Insurance) 29.95 7. Earnestine Gainous Case 25.00 On the evening of August 1, 1988, Respondent gave the check for $375.00 to Ms. Elwood and told her it was for the rent and that she did not want to provide security services any longer. The rent for the apartment was $285.00. The rental contract calls for a security deposit which had been waived. Ms. Elwood was looking at television at the time. On the following day, Respondent asked Ms. Elwood to pay for a videotape which was being delivered to Respondent. Ms. Elwood said she had no money. Respondent asked Ms. Elwood to use part of what she had given her the night before to pay for the items and that she would repay her later. Ms. Elwood called the NRS and asked about the check which the Respondent had given to her because she was concerned that the check was made out to her (Elwood) and not the real estate company. Someone at the NRS told Ms. Elwood that the check was to pay for Respondent's rent. Ms. Elwood advised the NRS that the Respondent owed no rent. The NRS told Ms. Elwood to send the check back to them. Ms. Elwood called the Sheriff's Department, who employed Respondent. She reported that the Respondent had given her a check for rent, that the Respondent owed no rent, and that the Respondent had wanted her to cash the check and give her the money, less $50.00, which Ms. Elwood could keep. The Sheriff's Department picked up the check and returned it to the NRS during the process of an investigation of the Respondent which the Sheriff's Department initiated. Ms. Elwood and her husband were the only whites in a predominantly black apartment complex, and Ms. Elwood had expressed her concern about staying in the complex if the Respondent left. After an investigation, the ACSD made the facts known to the Commander of the Naval Air Station who was responsible for the administration of the NRS and was the court-martial convening authority for the Respondent's husband. The Navy elected to counsel the Respondent's husband, but not to take disciplinary action against the Respondent because it was (1) counter to the purposes of the NRS and (2) there had been no laws broken. The ACSD took the facts they had developed to the office of the state attorney. After analysis, the state attorney refused to prosecute. Respondent was terminated from her employment by the Sheriff's Department, and Ms. Elwood gave notice to Respondent to move out at about the same time. The only evidence presented that the Respondent purchased lottery tickets is the testimony of Ms. Elwood, which is rejected. The Respondent's denials are more credible.
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 Administrative Complaint be dismissed. DONE and ENTERED this 16th day of May, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 16th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-867 Only the Petitioner filed proposed findings of fact. The following is a list of the findings which were adopted and those which were rejected and why: Paragraph 1: Adopted as paragraph 1 of Recommended Order. Paragraph 2: Adopted as paragraph 10 of recommended Order. Paragraph 3: Adopted as paragraph 11 of Recommended Order. Paragraph 4: Adopted as paragraph 12 of Recommended Order. Paragraph 5: Adopted as paragraph 13 of Recommended Order. Paragraph 6: Irrelevant. Paragraph 7: Adopted substantially as paragraph 15 of Recommended Order. Paragraph 8: Adopted as paragraph 16 of Recommended Order. Paragraphs 9 and 10: Adopted as paragraph 17 of Recommended Order. Paragraph 11: Omitted by Petitioner. Paragraph 12: Irrelevant. Paragraph 13: Adopted as paragraph 17 of Recommended Order. Paragraph 14: Irrelevant. Paragraphs 15, 16 and 17: Rejected as contrary to the more credible evidence. Paragraph 18: Irrelevant. Paragraphs 19-28: Rejected as contrary to the more credible evidence. See paragraph 3 and paragraphs 18-21 of Recommended Order. Paragraph 29: Adopted as paragraph 23 of Recommended Order. Paragraphs 30-34: Rejected as contrary to the more credible evidence. See paragraph 24 of Recommended Order. COPIES FURNISHED: Jeffrey Long, Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Elsa Lopez Whitehurst, Esq. Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Earnestine M. Gainous 851 Bert Road, #2 Jacksonville, FL 32211
The Issue The issue is whether Respondent discriminated against Petitioner in her employment based on her gender or disability, in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Respondent had employed Petitioner as a Toll Equipment Technician/OMST III for over ten years at the time of her termination. Her responsibilities included maintaining the equipment at the toll plaza, troubleshooting shop work, traveling to various work sites, and communicating with the public. On November 17, 1998, while working in the vicinity of traffic at a toll plaza, Respondent was struck by a passing truck. Petitioner went to a clinic where her injuries were examined. When Petitioner returned to work about three days after the accident, she performed light duty for three days. After three days, Petitioner worked without restrictions and performed her full job functions. On January 16, 2000, Petitioner reinjured her back while attempting to lift a monitor over her head while at work. On March 28, 2000, Dr. Hubert Aronson performed a surgery on Petitioner for a herniated disc. On June 6, 2000, Dr. Aronson determined that Petitioner had reached maximum medical improvement, and he rated her with a permanent partial physical impairment of seven percent. He ordered a functional assessment test to identify any work restrictions, prior to releasing her for work. On June 22, 2000, staff of HealthSouth Rehabilitation Hospital conducted a functional assessment test on Petitioner. Based on the assessment, by note dated July 31, 2000, Dr. Aronson returned Petitioner to regular work duties, without restrictions, as of August 1, 2000. Unsure that Petitioner's physician understood the physical demands of Petitioner's job, Mr. Ayala ordered that the Division of Risk Management obtain another functional assessment of Petitioner. By report dated August 18, 2000, Options Plus noted that it had documented the demands of Petitioner's work and presented this material to Dr. Aronson, who again released Petitioner to return to her regular job. Although Mr. Ayala was doubtful of her ability to perform her regular job duties, Petitioner performed her work until Christmas 2000, when she went on leave. While on leave, Petitioner reinjured her back. Petitioner called in sick on January 7, 2001, and informed Mr. Ayala that her back was hurting. A workers' compensation representative called Petitioner and suggested that she visit Dr. Bernard Chapnick, who examined Petitioner on January 9, 2001. Dr. Chapnick restricted Petitioner to light duty and stated that she was not to work, if no light duty were available. Dr. Chapnick made a follow-up appointment for Petitioner on January 16, 2001. When Petitioner returned to work and gave Mr. Ayala the doctor's note, he responded that he had no light duty. He made an imaginary swing with a golf club, implying that Petitioner had injured her back while playing golf. Respondent then placed Petitioner on unpaid medical leave, and Mr. Ayala informed Petitioner that she would be required to resume her regular duties on April 23, 2001. On April 23, 2001, Dr. Aronson released Petitioner for work, but still on light duty. When Petitioner returned to work seeking light duty, Mr. Ayala informed her again that none was available. He offered her another period of unpaid medical leave, but Petitioner declined the offer. By letter dated May 10, 2001, Respondent informed Petitioner that it intended to dismiss her, effective no sooner than ten days from the date of the letter. The reason for dismissal, as stated in the letter, is Petitioner's inability to perform her duties and absence without leave for three or more workdays. Following a Predetermination Conference, by letter dated June 27, 2001, Respondent advised Petitioner that she was terminated, effective June 29, 2001, due to her inability to perform the duties of her position and absence without leave for three or more workdays. Petitioner's complaint that a disabled male coworker received preferential treatment is groundless. At all material times, he was medically cleared to lift up to 50 pounds, which was considerably more than was permitted by Petitioner's light duty.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of October, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2003. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Roselisa Cocalis 15471 Southwest 110th Terrace Miami, Florida 33196 J. Ann Cowles Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired for theft.
Findings Of Fact At all times material to this case, Respondent Osmel Gonzalez-Escalona ("Gonzalez") was a custodian in the Palm Beach County School District ("District"), assigned to work at Berkshire Elementary School ("Berkshire"). Petitioner Palm Beach County School Board ("School Board") operates the schools within the District and has authority over all District personnel, including Gonzalez. As a noninstructional employee of the District, Gonzalez was subject to the collective bargaining agreement entered into between the School Board and the Service Employment International Union, Florida Public Services Union ("SEIU"). Elsa Ramon was a teacher at Berkshire during the 2007- 08 school year. Gonzalez cleaned her classroom as part of his regular duties. Some time in May 2008, Mrs. Ramon realized that she had not seen her cellular phone since using it on May 6 to call her husband. She recalled having placed a call to her husband that morning and leaving the phone on a table in her classroom. Because Mrs. Ramon did not use her phone frequently, she initially thought she had simply lost or misplaced it. When the phone did not turn up after a diligent search, Mrs. Ramon and her husband obtained a replacement phone from their carrier, T-Mobile. Mrs. Ramon's existing number was assigned to the replacement cell phone. Mrs. Ramon immediately began receiving calls on the new phone for a woman whose name she did not recognize. The frequency of these calls caused Mrs. Ramon to suspect that someone was using her old phone. She and her husband went to the T-Mobile store to report their concern about this possibility. They learned that a huge bill of approximately $3,300 had been run up on Mrs. Ramon's account, the result of numerous phone calls, including many international calls to persons in Cuba. T-Mobile promptly deactivated the phone number; it had been used without Mrs. Ramon's permission for about two weeks. Although Mrs. Ramon had not placed the many, expensive phone calls that produced the charges totaling several thousand dollars, T-Mobile nevertheless demanded that she pay the bill, pursuant to the contract between them. After some negotiation, T-Mobile reduced the charges to about $2,600, which Mrs. Ramon paid. Meantime, on June 2, 2008, Mrs. Ramon reported the theft of her cell phone to the School Police Department, because she believed that the phone had been taken from her classroom. After an investigation that lasted several months, the school police identified Gonzalez as the culprit. On October 3, 2008, Gonzalez was arrested on a charge of grand theft. On January 23, 2009, Gonzalez pleaded guilty, in the Circuit Court in and for Palm Beach County, to grand theft, a third-degree felony. He was sentenced to 12 months' probation and ordered to make restitution to Mrs. Ramon. As of the final hearing in this case, Gonzalez had reimbursed Mrs. Ramon for the loss she had incurred as a result of his unlawful use of her cell phone. At the hearing, Gonzalez admitted using Mrs. Ramon's phone, without her permission, to call friends and family in Cuba and other places. He denied having stolen the phone, however, claiming that he had found it in a store. The undersigned rejects this claim, which is not really exculpatory in any event, as being too implausible to believe. The simplest and best explanation for Gonzalez's having come into unauthorized possession of the cell phone of a teacher whose classroom he regularly entered for work related reasons, which phone was last seen and used by its rightful owner in said classroom, is that Gonzalez himself took the phone from the classroom. This, the undersigned finds, is almost certainly what occurred. Assuming Gonzalez's testimony about finding the phone were credible, however, which it was not, the undisputed fact remains that Gonzalez stole lots of expensive airtime, running up a bill of more than three thousand dollars in just two weeks by making numerous international phone calls, among others, for which Mrs. Ramon was liable. Thus, even in Gonzalez's telling, he committed a crime (to which he pleaded guilty), albeit one whose victim was a stranger rather than a co-worker. Ultimate Factual Determinations Gonzalez stole property from a teacher in whose classroom he worked as a custodian. As a result of this criminal behavior, he was arrested and accused of committing felony grand theft, a charge to which he eventually pleaded guilty. Having admitted to the commission of a felony that victimized an employee of the District, Gonzalez has given the School Board just cause to terminate his employment. Therefore, it is determined that the School Board has sustained its burden of proving, by clear and convincing evidence, the allegations forming the basis for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Gonzalez from his position as a custodian in the Palm Beach County School District. DONE AND ENTERED this 3rd day of December, 2009, 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 3rd day of December, 2009.
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of race and national origin in violation of the Civil Rights Act.
Findings Of Fact Respondent has a department General Services Administration (hereinafter “GSA”) responsible for providing security to County departments and facilities. GSA provides security services by contracting with private vendors. Two of the private security vendors are Delad Security (hereinafter “Delad”) and Forrestville Security (hereinafter “Forrestville”). In 2005, GSA, on behalf of Respondent, entered into a contract with Delad and Forrestville to assign security guards at County posts. The “General Terms and Conditions” of the contract provide in pertinent part: 1.16 Responsibility As Employer The employee(s) of the successful Bidder shall be considered at all times its employee(s) and not employee(s) or agent(s) of the County or any of its departments. . . . The County may require the successful bidder to remove any employee it deems unacceptable. . . Even though Delad and Forrestville as vendor companies provide security officers through a contract with Miami-Dade County, only the vendor companies have the authority to terminate one of its employees. Dangervil secured his security officer position by applying for employment through the vendor companies who set his schedule, administered his leave time, paid his salary and taxes, monitored his actions to ensure compliance with the terms and conditions of the contract, as well as provided his job duties and assignments. Dangervil is a black male whose national origin is Haitian. On June 27, 2007, Dangervil was working for Delad assigned to the 140 West Flagler Building for his security post. His job duties were patrolling the parking lot and checking the floors in the building. Joseph Wolfe (hereinafter “Wolfe”), a white male, is the GSA supervisor responsible for County facilities. On June 27, 2007, he reported to the 140 West Flagler Building location to look into a complaint about a possible disturbance on the 16th floor during a code compliance hearing. When he arrived on the 16th floor, Wolfe met Dangervil who was dressed in a uniform Wolfe determined had a sweat-stained shirt. Wolfe began to ask Dangervil a series of questions regarding his being assigned to the disturbance location, but was unable to ascertain why Dangervil was there. Dangervil did tell him "I don't work here." Wolfe determined that Dangervil was not properly prepared for the security detail and that Dangervil lacked the requisite ability to effectively communicate using the English language. After the incident, Wolfe contacted a Delad supervisor who confirmed that Dangervil had been instructed thru the chain of command to go to the hearing location for his post June 27, 2007. Section 3.41 of the security contract with Delad provides an English proficiency qualification for security personnel and states in relevant part: * * * C) Ability to Communicate in English . . . all Contractor Security personnel must be fully literate in the English language, (e.g., able to read, write, speak, understand, and be understood). Oral command of English must be sufficient to permit full communication. . . . The contract further allows a security guard to be removed from the contract if s/he has difficulty understanding or speaking English. Wolfe subsequently wrote a Guard Infraction Report against the security vendor directing that Dangervil be removed from the Delad contract with the County stating: I was dispatched to location ref a code compliance hearing and protesters carrying signs criti[c]izing Dade County. Upon arrival to the 16th floor I met with S/O Dangervil, Brunel. Dangervil was unable to tell me why he was there, stating, "I don't work here." Then he asked someone on their way to attend hearing to help me as if he thought they were a county employee. It was determined the officer was not pro[p]erly briefed prior to being sent to the detail. The officer was allowed to work with what appeared to be a sweat stained uniform shirt. Dangervil's removal from the Miami-Dade contract did not affect Dangervil's employment status with Delad. On October 26, 2007, GSA dispatched Wolfe to the Opa Locka Elderly Facility, a County public housing facility, to investigate a complaint that a Forestville security officer did not want to work his assigned post. David Thibaudeau (hereinafter “Thibaudeau”), Wolfe's supervisor and GSA Deputy Chief, and GSA Supervisor Sanchez also reported to the Opa Locka Elderly Facility after receiving a call from the dispatch center. There had been several reports from security vendors that officers were being assaulted and Thibaudeau and Sanchez went to the location to help resolve the problem regarding the security officer assigned to the post and the supervisor refusing to work at the post. On duty at the location was Dangervil, the assigned security officer. Upon arriving, Thibaudeau had a conversation with Dangervil, Wolfe, and two Forrestville supervisors. The Forrestville supervisor explained that Dangervil did not want to work the post and was going to leave. Dangervil explained to Thibaudeau that he didn't want to work the location because he heard bad things happened at the location.1 Subsequently, Thibaudeau instructed the Forrestville Supervisor to work the post since Dangervil was leaving. The supervisor also refused to work the facility but ultimately agreed when Thibaudeau explained that he would have to call their company to get the project manager to resolve the issue. Wolfe recognized that Dangervil was the same Delad security officer he had dealt with in June 2007 at the 140 West Flagler incident. Dangervil had been placed on a “do not hire” list by Wolfe because of the previous incident that took place at the 140 building. Wolfe wrote up a second Guard Infraction Report which directed that Dangervil be removed from the Forrestville contract. The report narrative stated: While conducting an inspection of the post during an afternoon to mid shift change I recogni[z]ed the on coming [sic] midnight shift officer as being previ[o]usly removed from the contract by me while he was employed by Delad security. Prior to being removed again S/O Dangervil refused to stay at post because of the previous incidents. Dangervil was not removed from the contract because he was Haitian or Black.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. 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 20th day of July, 2009.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a Hispanic male. Respondent is an 860-unit apartment complex in Ocala. Petitioner was employed by Respondent as a full-time maintenance technician from 2001 through September 28, 2007. His job responsibilities included performing repairs and general maintenance work on the insides of the apartments. Petitioner’s starting wage in 2001 was $9.00 per hour. He received annual raises from 2001 to 2004, at which point his wage was $11.75 per hour. Petitioner did not receive any raises from 2004 through 2007. He was still earning $11.75 per hour when he was fired on September 28, 2007. Starting in 2004, Respondent did not give raises to any maintenance technicians who were not HVAC-certified. This policy applied equally to all maintenance technicians, including non-Hispanics, and was intended to encourage them to get HVAC- certified. HVAC certification was important to Respondent because the air conditioning systems at the apartment complex were getting older and were requiring more frequent repairs. Respondent provided the necessary study materials for the HVAC certification exam and paid for the exam. Petitioner is not HVAC-certified. He took the certification exam once, but he did not pass. He did not take the exam again, even though Respondent would have paid for him to do so as it did for other maintenance technicians. HVAC certification is not required to perform all types of work on air conditioners, and Petitioner continued to do some work on the air conditioners at the apartment complex after 2004 even though he was not HVAC-certified. Petitioner was characterized as a “fair” employee who did “okay” work. His supervisor, a Hispanic male, testified that there were some jobs that he did not assign to Petitioner, that Petitioner frequently got help from other employees, and that he received a couple of complaints from other maintenance technicians about Petitioner’s work. Respondent does not have an employee handbook, and the only written policy that Respondent has is a policy prohibiting sexual and other harassment. Respondent’s executive director, Laura Smith, testified that she expected employees to use “common sense” regarding what they can and cannot do at work. Respondent utilizes a system of progressive discipline, which starts with warnings (oral, then written) and culminates in dismissal. However, the nature of the misconduct determines the severity of the discipline imposed, and a serious first offense may result in dismissal. On October 5, 2006, Petitioner was given an oral warning for “improper conduct” for visiting with a housekeeper multiple times a day for as long as 20 minutes at a time. The housekeeper also received an oral warning for this conduct. On May 15, 2007, Petitioner was given a written warning for the same “improper conduct,” i.e., wasting time by going into an apartment to visit with a housekeeper. Petitioner acknowledged receiving these warnings, but he denied engaging in the conduct upon which they were based. His denials were contradicted by the more credible testimony of his supervisor and Ms. Smith. Petitioner was fired on September 28, 2007, after a third incident of “improper conduct.” On that day, Petitioner left the apartment complex around 10 a.m. to get gas in his truck. He did not “clock out” or get permission from his supervisor before leaving the apartment complex. Petitioner was away from the apartment complex for at least 15 minutes, but likely no more than 30 minutes. Even though Respondent does not have written policies and procedures, Petitioner understood, and common sense dictates that he was supposed to get his supervisor’s approval and “clock out” before he left the complex on a personal errand. Petitioner also understood the procedure to be followed to get the 14 gallons of gas per week that Respondent provided for maintenance technicians. The procedure required the employee to get the company credit card from the bookkeeper, get the gas from a specific gas station, and then return the credit card and a signed receipt for the gas to the bookkeeper. Petitioner did not follow any aspect of this procedure on the day that he was fired. He had already gotten the 14 gallons of gas paid for by Respondent earlier in the week. Petitioner’s supervisor, a Hispanic male, compared Petitioner’s actions to “stealing from the company” because he was getting paid for time that he was not at the apartment complex working. He also expressed concern that Respondent could have been held liable if Petitioner had gotten in an accident on his way to or from getting gas because he was still “on the clock” at the time. Petitioner testified that he and other maintenance technicians routinely left the apartment complex to fill up their cars with gas without “clocking out” or getting permission from their supervisor. This testimony was corroborated only as to the 14 gallons of gas paid for each week by Respondent. There is no credible evidence that other employees routinely left the apartment complex to do personal errands without “clocking out,” and if they did, there is no credible evidence that Respondent’s managers were aware of it. There is no credible evidence whatsoever that Petitioner’s firing was motivated by his national origin. His supervisor is Hispanic, and he and Ms. Smith credibly testified that the fact that Petitioner was Hispanic played no role in her decision to fire Petitioner. Petitioner claimed that he was “harassed” by Ms. Smith and that she accused him of having sex with a housekeeper in the vacant apartments. No persuasive evidence was presented to support Petitioner’s “harassment” claim, which was credibly denied by Ms. Smith. Petitioner also claimed that he was disciplined differently than similar non-Hispanic employees, namely James Stroupe, Jason Head, and Willie Hutchinson. Mr. Stroupe is a white male. He worked on the grounds crew, not as a maintenance technician. In May 2007, Mr. Stroupe was given a written warning based upon allegations that he was making explosive devices at work, and in September 2007, he was given an oral warning for “wasting time” by hanging out in the woods with Mr. Head. Mr. Head is a white male. He worked on the grounds crew, not as a maintenance technician. In September 2007, he received a written warning for “wasting time” by hanging out in the woods with Mr. Stroupe. Mr. Hutchinson is a white male, and like Petitioner, he worked as a maintenance technician. In September 2007, he was arrested for DUI. Mr. Hutchinson was not disciplined by Respondent for this incident because it did not happen during working hours and it did not affect his ability to perform his job duties as maintenance technician. The grounds department (in which Mr. Stroupe and Mr. Head worked) was responsible for maintaining the landscaping around the apartment complex, whereas the maintenance department (in which Petitioner and Mr. Hutchinson worked) was responsible for maintaining the insides of the apartments. The departments had different supervisors. Petitioner was initially denied unemployment compensation by Respondent after he was fired, but he successfully appealed the denial to an Appeals Referee. Petitioner received unemployment compensation through April 2008. On April 11, 2008, Petitioner started working for Holiday Inn as a maintenance technician. He is employed full time and his wage is $11.50 per hour. Respondent placed an advertisement in the local newspaper after Petitioner was fired in order to fill his position in the maintenance department. The advertisement stated that Respondent was looking for an applicant who was HVAC-certified. Respondent hired Javier Herrera to fill the position. Mr. Herrera, like Petitioner, is a Hispanic male.
Recommendation Based upon the foregoing findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 16th day of September, 2008, 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 16th day of September, 2008.
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes (2002), by forcing the termination of Petitioner's employment with Respondent because of his gender (male), and/or national origin (Venezuela), and/or his age (37); and because Petitioner alleged that younger, female lifeguards were given better work assignments.
Findings Of Fact Petitioner was employed by Respondent from November 26, 2002, until April 17 2003, in the position of deep water lifeguard at Respondent's facility at the Grand Floridian Hotel (Grand Floridian) located in Lake Buena Vista, Florida. He worked in that position until his resignation on April 17, 2003. Petitioner is a Hispanic male, aged 37, and a member of a protected class. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was hired for a full-time position to work 40 hours per week. He normally worked a ten-hour shift, four days a week. Petitioner never applied for any other position or promotions during his employment. All full-time lifeguards at the Grand Floridian are covered by a collective bargaining agreement (CBA) between Respondent and the Services Trades Council Union. A lifeguard working at the Grand Floridian does not have to be a member or pay dues to the union in order to be covered by the terms of the CBA. Petitioner is not a member of the union. At the time of his hire, Petitioner was provided with a packet of materials containing Respondent's employment policies. Respondent had a policy regarding harassment that covered all of its employees and prohibited all types of harassment in the workplace, including any such behavior based on age, national origin, and/or gender. Respondent also has an "equal opportunity" policy that applies to all of its employees. This policy provides that all employees should be treated equally in terms of hours, work location, and scheduling based on seniority. Operations at the Grand Floridian Of the class of lifeguards hired at the same time, Petitioner was the only one assigned to the Grand Floridian. At the time of being assigned to the Grand Floridian, there were approximately 25 lifeguards employed there. The lifeguards at the Grand Floridian are full-time, part-time casual, or part- time regular employees. There are also "college program" lifeguards who perform all of the same duties as the full-time and part-time employees. The starting times for employees are staggered, based on the needs of the area and the time of the year. The main duties of a lifeguard at the Grand Floridian are to ensure safety and guard the pools, clean the pool and beach areas, work the cash register, and operate the marina. The head supervisor of the Grand Floridian lifeguards during Petitioner's employment was Jerry Davis. Davis has been employed with Respondent for nine years. He has served in his current position as the recreation operations manager for six years. His duties in this position include supervising the outside recreation areas, including the pools, boats, and lifeguards at the Grand Floridian. Davis plays no role in hiring the employees that report to him, but rather Respondent's Employee Relations Department is responsible for hiring these employees. Davis has the authority to terminate lifeguards that report to him. Prior to terminating an employee, however, Davis seeks the input of the Employee Relations Department. The evidence is credible that Davis is accessible to his direct reports and makes sure that his office is always open to them. If a lifeguard wants to speak with Davis, he will make himself available to him or her. As a manager, Davis has undergone training from Respondent regarding its equal employment policies and anti- harassment policies. He has also been trained that employees may raise complaints about working conditions with either their manager or the Employee Relations Department. All employees are made aware of these policies and complaint procedures as a part of their orientation program. Under Davis, the next supervisor was Darin Bernhard. Bernhard has been employed with Respondent for eight years and is currently employed as a recreation guest service manager. Until October 2003, Bernhard was employed at the Grand Floridian. In that capacity, Bernhard directly supervised lifeguards, marina employees, and activities' employees. Bernhard had continuous interaction with lifeguards throughout the day while at the Grand Floridian. Bernhard had an open-door policy to all employees and made himself accessible to them. Under Davis and Bernhard, there were three coordinators who served as the immediate supervisors of the lifeguards. The weekly work schedule for lifeguards was posted on the wall every week. Bernhard, along with Respondent's Labor Office, was responsible for preparing this weekly schedule. The factors used in preparing this schedule were a scheduling bid submitted by each employee, scheduled vacations, and operational needs. As for operational needs, Bernhard would try to give a combination throughout the week based on full-time, part-time, and college program employees and avoid having all college program employees on duty at one time, thereby providing more experience on each shift. The CBA contains a provision stating as follows: "The principles of seniority shall be observed in establishing days off and work schedules by department, location, or scheduling pool." As a result, the schedule bids of all employees were considered based on the seniority of the employees. At the time of his hire, Petitioner spoke with Bernhard about special scheduling requests. Specifically, Petitioner asked to receive early shifts and weekends off. He wanted the weekends off due to child-care issues with his son. Bernhard informed Petitioner that he would attempt to work with Petitioner on this, but that he was limited in what he could do based on the seniority requirements set forth in the CBA, as well as the fact that most of the lifeguards preferred to have weekends off. At that point in time, Petitioner had the least amount of seniority of all the full-time lifeguards, since he was the most recently hired employee. Despite the CBA restrictions, Bernhard made every effort to provide Petitioner with at least one day each weekend off and tried to provide him with two, whenever possible. On a regular basis, Petitioner was scheduled to have Saturdays off. In addition, on numerous occasions, he was given Friday, Saturday, and Sunday off from work, in accordance with his special request. At no time during his employment did Petitioner ever complain to Bernhard about not getting enough days off on the weekend. Employees would occasionally complain to Bernhard about the weekly schedule. When he received such complaints, Bernhard would listen to their complaints and not take any adverse action against any employee for complaining to him about scheduling issues. On occasion, lifeguards would be sent home early due to slow business or inclement weather. This decision would be made either by the immediate supervisor on duty or one of the coordinators. The lifeguards would be allowed to volunteer to go home on a "first-come, first serve" basis. No lifeguard, however, was forced to go home early. Similarly, Bernhard did not receive complaints from any lifeguard about being forced to go home early. The coordinators at the Grand Floridian were responsible for making the daily rotation schedules. There were five primary positions that the lifeguards could be assigned to on a daily basis, consisting of two lifeguard positions at the pool, the slide, the marina, and cashier. The coordinators made these assignment decisions based on the people they had available that day. The primary focus was to make sure that all of the areas were properly covered. Such daily rotation assignments were also based on certain needs during particular periods of the day. In addition, certain assignments were given to certain employees if they are more capable of performing the task. It is also not uncommon for the daily rotation to be changed during the day based on unexpected factors, such as absent employees. In terms of shift assignments, an effort is made to make sure that regular employees and college program employees are working together so that the regular employees can provide guidance when needed. During a workday, most of the employees rotate positions every 30 minutes to an hour. The rotation of duties for the lifeguards changed on a daily basis. Petitioner enjoyed working as a lifeguard because he considered himself a stronger lifeguard than others in his department. He also described himself as the "leader of the lifeguards." All lifeguards are trained in the cashier duties, but very few individuals are chosen to actually work as a cashier. These cashiers undergo special training prior to performing these duties. The primary attributes for a cashier are good guest interaction and good phone skills because a cashier is required to interact with guests, both on the telephone and in person. This assignment also differs from the other assignments in that the employee assigned to this position normally does not rotate throughout the day to other assignments. It is not uncommon for the same employee to serve as a cashier for an entire day. Petitioner was sometimes assigned to work at the marina, but not as a cashier. Petitioner never spoke with any of his supervisors or coordinators about working more at the marina or as a cashier. Each lifeguard at the Grand Floridian was required to complete four hours of in-service training each month, either at his home resort or at another resort. Attendance at these training sessions were tracked on a daily sign-in sheet. If a lifeguard failed to complete his or her in-service training for the month, he would be reprimanded. Davis prepared a reprimand for Petitioner on April 1, 2003. This reprimand was the result of Petitioner's failing to complete his in-service training hours for the month of March 2003. As a result of failing to complete this training, Petitioner received a two-point reprimand for poor job performance. Petitioner did not know when Davis prepared the Poor Job Performance Memorandum dated April 1, 2003. Davis and Petitioner did not see each other between Petitioner's accident on March 30, 2003, and the date Petitioner signed the Poor Job Performance Memorandum on April 9, 2003. At the time that Davis prepared this memorandum, Petitioner had not made any complaints of discrimination or harassment to Davis. The attendance of the lifeguards on a daily basis was tracked by the use of an electronic swipe card. The daily schedule and attendance of the lifeguards was also tracked on a daily sheet completed by the coordinators. This sheet was kept in the managers' office and was forwarded to the Respondent's Labor Office when it was completed. Bernhard usually reviewed these sheets on a daily basis as well. The lifeguards did not have access to these sheets on a daily basis. Under the attendance policy in the CBA, three absences in a 30-day period warranted a one-point written reprimand. An employee had to receive three written reprimands within a 24- month period before he could be terminated for attendance issues. The reasons for an absence did not make a difference for purposes of accruing points under the policy. On March 24, 2003, Petitioner called in sick and did not appear for work. On his way home from work on March 31, 2003, Petitioner was in a car accident in a parking lot on Respondent's property. As a result of that accident, Petitioner's car had to be towed because it was not drivable. Petitioner did not, however, seek medical treatment as a result of the accident. Shortly after the accident occurred, Petitioner contacted Bernhard. He informed Bernhard of the accident and told him that he would not be available for work the next day because his car had been destroyed. He did not inform Bernhard that he had been injured in any way. Petitioner was absent from work on April 1, 2003, because he had no transportation. Petitioner called in his personal absence on April 1, 6, 7, 8, 13, 14, 15, and 16, 2003, and was a "no show" on April 2, 2003. As a result of these numerous absences, Davis made a decision to contact Petitioner by telephone and inquire about the reasons for these multiple absences. Petitioner informed Davis that he still did not have transportation. Petitioner expressed concern to Davis that he was afraid he was going to accrue too many points and get himself terminated. Davis responded to Petitioner that if he did not return to work, he would accrue points under the attendance policy. Petitioner asked Davis if it would be better if he terminated himself or if he was terminated by Respondent. Davis also informed Petitioner that if he terminated himself, at some point he might be able to return to his job at Respondent, though he did not guarantee him that he could simply return. Davis made it very clear to Petitioner that this was a decision he had to make. At the time of Davis' phone call to Petitioner, he had accrued sufficient points under the applicable "attendance policy" set forth under the CBA to warrant giving him a one- point written reprimand. Davis had not been able to give the reprimand to Petitioner, however, because he had not returned to work. At no time had Davis ever informed Petitioner that such a reprimand was waiting for him. In addition, such absences would not have provided a basis for terminating Petitioner at that point in time. Petitioner contacted Davis the following day and informed Davis that he was going to voluntarily resign his employment. Upon learning of this decision, Davis informed Petitioner that he needed to return his uniform and all other of Respondent's property prior to receiving his last paycheck. All employees are required to return their uniform and Respondent's property at the time of resignation. Davis never informed Petitioner that he was being terminated or that he had an intention of terminating him. Similarly, Davis never told Petitioner that he had no option but to resign. Davis had no problem with Petitioner returning to work, provided he could obtain proper transportation. After Petitioner's resignation, Davis completed the required paperwork and indicated that Petitioner should be classified as a "restricted rehire." Davis chose this restriction due to Petitioner's tardiness and attendance issues, as well as his failure to take responsibility to make it to work. This decision to categorize him as a "restricted rehire" was not based on Petitioner's age, national origin or his gender. Petitioner visited Respondent's casting center (human resource department) on June 17, 2003, approximately two months after his resignation, with the intent to reapply for his prior position. Petitioner wanted to return to his same position at the Grand Floridian, working for Davis and Bernhard, as well as working under the same coordinators. On June 17, 2003, Petitioner met with Fernanda Smith, who has served as a recruiter for Respondent for five years. Smith was born in Buenos Aires, Argentina, and is Hispanic. As a recruiter, Smith is responsible for interviewing, selecting, and hiring the strongest candidates for positions at Respondent. She is responsible for hiring employees for all hourly, entry- level positions. The hiring process used by Respondent is the same for both new applicants and former employees of Respondent. That process is set forth in the "Rehire Review" policy given to each recruiter. Once Smith is randomly assigned an applicant, she brings them to her office and reviews their personal data in the computer. She then reviews the application for accuracy and completeness. She also confirms that they are qualified to work in the United States and their criminal background. Smith reviews the conditions of employment with the applicant, including compensation, appearance, ability to attend work and transportation. If the applicant was previously employed by Respondent, Smith also reviews the application for the reasons the employee previously left employment and the applicant's rehire status. The different rehire statuses are "yes rehire," "restricted rehire," and "no rehire." If a former employee has been categorized as a "restricted rehire," Smith then must confirm that the person is currently employed and that he or she has been at that employment for a period of at least six months at the time of re-application. Assuming they can satisfy these requirements, the applicant is required to provide an employment verification letter from their current employer within one week of the interview. At that point, the information is forwarded to a rehire committee for consideration. On June 17, 2003, Smith interviewed Petitioner for potential rehire with Respondent. She recalls that when she met him in the lobby, he was very professionally dressed. Upon entering her office, Smith reviewed the information on Petitioner's application with him. At that point, she noticed that he had a recent date of termination from Respondent and asked him the reasons for his termination. Petitioner responded that he had left his employment because of transportation problems and that he had missed a number of days from work. In reviewing Petitioner's application, she realized that he did not meet the requirements for consideration as a "restricted rehire." First of all, Petitioner did not offer any evidence of current employment at the time of the interview. Secondly, Petitioner had only been gone from Respondent for a period of approximately two months, and thus, did not have the six months of continuous employment to be considered for rehire. Smith shared with Petitioner that he did not meet the minimum requirements for a "restricted rehire." Petitioner had no idea what that designation meant. At that point, Petitioner responded by getting very upset, yelling and screaming at Smith, standing up and pointing his finger at her. He then informed Smith that he was going to sue Respondent for discrimination and left her office. Petitioner did not allow Smith to make any other comments to him. Immediately after Petitioner had left the building, Smith prepared the standard evaluation that she prepares for all applicants she interviews, including the incident that occurred in the interview with Petitioner. If Petitioner had allowed Smith to explain the process and eventually provided the appropriate documentation, he might have been considered for rehire. Based on his behavior in the interview, however, Smith recommended that he not be considered for rehire, particularly for the position of lifeguard where he would be dealing with guests on a regular basis. Allegations of Discrimination Petitioner alleges that one of the coordinators referred to his national origin in a derogatory manner on one occasion. Other than this isolated alleged comment, he stated he never heard anyone else at Respondent make any derogatory comments about his being Hispanic or Venezuelan. Petitioner did not complain about this comment to anyone at Respondent and specifically did not complain to Davis, Bernhard, or employee relations about it. Other than this one comment by an unnamed coordinator, Petitioner offered no evidence that any actions or decisions were taken against him based on his national origin. In support of his age discrimination claim, Petitioner alleges that some of his co-workers referred to him once or twice as "old." Petitioner did not offer any evidence that any of his supervisors or coordinators ever used any of these terms in reference to him. Petitioner does not know whether or not he ever discussed his age with other workers. At the time of Petitioner's resignation, he was not the oldest lifeguard working at the Grand Floridian. Penny Ivey and Sherry Morris were both older than Petitioner, and Davis was born on February 5, 1951. At the time of Petitioner's resignation, Davis was 52 years old. Other than these alleged isolated comments, Petitioner offered no other evidence that any actions or decisions were taken against him based on his age. Petitioner claims that one example of gender discrimination was that the rotation schedule was not equal. In particular, he alleges that the "young and beautiful girls" were preferred in the rotation schedules because they were allowed to work in the marina and at the cash register more than males. Petitioner alleges that Jaimy Tully, a 23-year-old female lifeguard, was always late. For example, Petitioner alleges that Tully was late on March 2, 2003, based on the fact that she was supposed to be there at 10:00 a.m. The daily schedule indicates that she arrived for work at 9:30 a.m. In reviewing the document, however, it indicates "S/C" which means that a schedule change was made, and Tully showed up for work half an hour early, not late, and she still worked her scheduled day of ten hours. A schedule change would occur for several reasons, including the need to have certain employees come in early for an in-service session or the personal request of an employee. It sometimes required employees to come in for work early and other times required them to work later. Petitioner similarly alleges that Tully was late on March 22, 2003, and should have been fired for that. In reviewing the daily schedule for that date, however, it is evident that a schedule change was made, and Tully was scheduled to work from 9:30 a.m. to 8:30 p.m., a regular 10-hour day, and that she actually worked those hours. Petitioner admitted at the hearing that she was actually early to work and not late. Petitioner alleges that Tully was late again for work on April 7 and April 16, 2003. A review of those daily schedules, however, reveals that Tully had a schedule change on each of those days and that she worked the hours that she was assigned. Of all these allegations of Tully being late to work, Petitioner never complained to anyone about it. Petitioner then alleges that Tully arrived for work early on February 15, 2003, and that she was allowed to work extra hours and earn overtime. On that particular occasion, however, Tully was called in early because she needed to attend an in-service training session that was occurring that day. Petitioner conceded that Tully was not late on that day. Petitioner admitted that both males and females were called in to work additional hours as lifeguards. For instance, Michael Whitt, a male employee, was allowed to start work earlier based on a schedule change on March 4, 2003. Similarly, a schedule change was made involving Whitt on February 25, 2003, and he was required to report to work at 11:40 a.m., not 10:00 a.m., and as a result, was not given any breaks that day. Petitioner never received any discipline as a result of being late to work or for leaving work early. Petitioner claims that he suffered discrimination on January 12, 2003, because Tully was allowed to start work later than he and then was allowed to work as a cashier for the majority of the day. He claims that she should have been on a rotation like him and that she was given more hours than he was. Tully was trained as both a lifeguard and a cashier, but she had more cashier experience than the majority of the other lifeguards. She also had good guest-interaction and cash- handling skills, and thus, she was placed as a cashier more than most of the other lifeguards. The cashier assignment also differed from the other assignments in that the employee assigned to this position normally did not rotate throughout the day, and it was not uncommon for the same employee to serve as a cahier for an entire day. Petitioner never spoke with any of his supervisors or coordinators about serving as a cashier, nor did he ever complain to Bernhard about any of his daily assignments. He alleges that the woman and the "young girls" were always placed at the marina. When asked to identify "these girls," he stated he was referring to Mindy and Matt, a male employee. In particular, Petitioner testified that on December 25, 2002, Matt served in the marina for three consecutive rotations on that particular day. He also points out that Matt had a longer break than he did on that particular day. There was no pay differential between employees who were assigned to work at the marina and those who worked at the pool. Similarly, there was no pay differential between employees working as a cashier and those at the pool. Petitioner never made any complaints to Davis about his weekly schedule or his daily rotation assignments. Similarly, Petitioner never complained to Davis about any disparate treatment or harassment based on his age, national origin, or gender. Petitioner never raised any complaints about discrimination or any other working conditions with Bernhard. Bernhard never made any derogatory comments to him or about him. Bernhard does not give any preference to any employees based on age, national origin, or gender. Petitioner was aware that there was an Employee Relations Department located at the casting center, but never complained to them about his working conditions or alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES Petitioner's Petition for Relief and dismisses his complaint. DONE AND ENTERED this 14th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2004. COPIES FURNISHED: Fernando J. Conde 4732 Olive Branch Road Apartment No. 1205 Orlando, Florida 32811-7118 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 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 The issue in this cause is whether Respondent engaged in unlawful employment practices of discrimination against Petitioner, for the reason of her being a female, by denying her management training during her employment tenure and by subsequently terminating her employment, in violation of Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2003).1
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes; and stipulations of the parties, the following relevant and material facts, arrived at impartially based solely upon testimony and information presented at the final hearing, are objectively determined: Petitioner, Kelly McKean, is a Caucasian female and, at all times pertinent to this proceeding, was an employee at one of Respondent's, Econo Auto Painting, Inc., business locations, located at 1822 West Memorial Boulevard, Lakeland, Florida, from February 12, 2001, until she was terminated on June 23, 2003. Petitioner had approximately six years of non-continuous employment at several of Respondent's business locations before beginning her employment at the above Lakeland business site. Petitioner was employed by Respondent as a "taper," the person who is responsible for taping cars after body repairs and before painting. The taping of cars consisted of aligning strips of tape to specific areas of each automobile to prevent the taped area from being painted by the painter. Petitioner was an "aggrieved person" as defined by Section 760.10, Florida Statutes. The evidence of record establishes the fact that during all times pertinent, Respondent's Lakeland location employed nine employees comprised of: two females and seven males (five Caucasians/three Hispanics/one African American). Of the nine employees, one Caucasian female and one African American male were in managerial positions. Both were employed through contractual services of Selective HR Services (SHRS), an independent contractor and co-employer of Petitioner. Respondent is an automobile body shop business specializing in automobile body repairs and painting the exterior of cars and, at all times pertinent to this proceeding, was an "employer" as defined by Subsection 760.02(7), Florida Statutes. During all times pertinent to this proceeding, SHRS was responsible for providing human resources management services for Respondent's employees.4 At all time pertinent to this proceeding, Respondent hired the shop managers for its several auto body repair shops through SHRS. At no time pertinent to this proceeding did Respondent promote employees to management positions from within. At no time pertinent to this proceeding did Respondent permit, offer, or have in place a management training program for the training and promotions of employees from within the ranks of its shop employees to management positions within the company. At all times pertinent to this proceeding, and, on Monday, June 23, 2003, Marquez Green was the shop manager and Ron Link was the assistant manager of Respondent's Lakeland branch body shop during Petitioner's last term of employment at that location. Basis for Petitioner's Termination Several weeks preceding her termination, on June 23, 2003, the assistant shop manager, Mr. Link, noticed and personally discussed with Petitioner her repeated improper taping of some cars in the assembly line processes. Mr. Link spoke with Petitioner about this problem particularly stressing the fact that each car not properly taped required repainting which resulted in a slowdown of the repair, sanding, taping, and repainting process. It was made clear to Petitioner that repainting due to improper taping was causing the shop to lose profit. During the days following notice of the problem regarding incorrectly taped cars, Petitioner failed and/or refused to improve her work habits. The lack of improvement by Petitioner of her work habit of taping cars apparently became of some concern with management, in view of Petitioner's experience and over seven years of service as a taper with Respondent's business. Added to this disturbing trend, some time later, both the shop manager and assistant manager observed Petitioner in the manager's office reading business documents. Management confronted Petitioner with this violation of its policy that "none management" personnel were not allowed to read/review business documents. Petitioner gave an excuse for her conduct stating that the prior manager permitted her to review office documents when she was caught up with her work. Other than her statement, Petitioner failed to provide the identity or the testimony of the prior manager who allegedly granted her permission to review office documents when she had completed her work assignments before the end of the day. Petitioner presented no corroborating evidence in support of her assertion of prior managerial permission for her to review office documents. Petitioner's allegation of "prior permissive authority" was thus not credible. Mr. Green gave undisputed testimony that during a third occasion, he observed Petitioner and a non-employee male friend of Petitioner walking and talking in the work area restricted to employees only. Mr. Green approached the couple and immediately brought the rule infraction of no non-employees within the restricted work area to Petitioner's attention, ending by instructing Petitioner to tell her male friend to leave the restricted workshop area immediately. Under these circumstances, and in the presence of a non-employee, Petitioner said to her shop manager: "He'll leave when I want him to leave." Following Petitioner's refusal to obey the shop manager's direct order accompanied by her disrespectful comment, Mr. Green moved to call the local police, and only then did Petitioner's male friend leave the premises. Mr. Green subsequently discussed this matter, as well as the profit loss due to improper taping of cars, with Mr. Link, and they jointly decided not to take disciplinary action against Petitioner at that time. Notice of Termination On Monday, June 23, 2003, Petitioner reported to work at approximately 7:35 a.m. and five hours later, at approximately 12:35 p.m., she had completely taped all nine cars in the shop for repair and painting that day. Petitioner sought out Mr. Link, inquiring what he would have her do next; assist other employees in the shop or go to lunch? Mr. Link instructed Petitioner to go home for the remainder of the day. After her departure, Mr. Link and Mr. Green discussed Petitioner's continuing hurried work habits, her attitude toward management when given a direct order, and her unauthorized presence in the manager's office reviewing business documents. Management considered the following: (1) Petitioner's continued episodes of improper taping was causing an increase in cost and a decrease in profits, (2) Petitioner's negative attitude toward management, and (3) Petitioner's unauthorized presence in the manager's office looking at managerial business documents. Management determined that the above conduct was sufficient basis for her termination as an employee. In the afternoon of June 23, 2003, Mr. Link, with authorization from Mr. Green, telephoned Petitioner and informed her that she was terminated because of her repeated and costly taping errors and her failure to correct those errors. The telephonic notice of termination was followed by a written termination letter with check marks beside the boxes "refusal to perform job duties" and "unable to perform job."5 This document formed the factual basis for Petitioner's termination as an employee. Background and Employer's Policy On February 12, 2001, before she began working at Respondent's Lakeland job site, but while she was working for Respondent at another job site, Petitioner executed an Employment Acknowledgement packet containing the policy(s) and procedures she agreed to follow in the event there occurred any employment disputes, including any type of discrimination. Petitioner also agreed to resolve employment disputes through use of SHRS' Alternative Dispute Resolution (ADR) procedure. Prior Complaints Made by Petitioner While working at Respondent's Longwood, Florida, job site, but before working at the Lakeland job site, Petitioner made one verbal complaint of sexual harassment to Betty Branham, SHRS compliance supervisor, regarding sexual comments regarding her buttocks made by male co-workers. The record does not contain evidence whether this complaint was pursued or dismissed. Petitioner neither made complaints nor did she make any reports of sexual harassment or discrimination, gender or otherwise, at the Lakeland job site during her February 12, 2001, to June 23, 2003, employment tenure there. Petitioner did not file a report with SHRS claiming discrimination because of her gender and/or because she was denied management training opportunities and opportunities for promotion into management. Other Employees Terminated by Respondent During the early hours of June 24, 2003, one day after Petitioner's termination, Mr. Link terminated a male employee, Edward Burgess. Mr. Burgess was a "sander," and he was terminated for "refusal to perform job duties" and "unable to perform job." According to Mr. Link, Mr. Burgess was "taking two-to-three times longer than what he should to sand cars." During the evening hours of June 24, 2003, Mr. Green terminated another male employee, Mr. Link. Mr. Link was terminated, as he recalled, "because another male employee made accusations that while walking behind him Mr. Link bumped into his rear and made sexual gestures." Mr. Link admitted he could not recall, that is, he could not confirm, argue or deny, the other party's versions of what actually occurred and what was said at the time of his bumping into the other employee. The unnamed other employee did not testify. Petitioner, through the testimony of witnesses, of record, and exhibits admitted into evidence, failed to produce a scintilla of substantial and competent evidence to establish: that she was subjected to an adverse job action when, in fact, she was terminated for poor job performance and disrespectful conduct toward management on June 23, 2003; that because of her gender, female, she was treated differently than similarly situated male employees, who were not terminated after violation of work place policy(s); and (3) that she was qualified for the job as managerial trainee but was denied an opportunity for employee managerial training which was provided by her employer to other employees.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief and the Charge of Discrimination filed in this cause by Petitioner, Kelly McKean. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 February, 2005.
Findings Of Fact Respondent Pace is an employer who is subject to the provisions of Section 760.10, Florida Statutes, in its Florida operations. The company sells retail goods at discount prices to buyers who qualify for membership in the shopping program. During the Christmas merchandising season, it was decided that Respondent Pace would add temporary security staff in Tampa, Florida, until the close of the season. Six people were to be recruited for the positions. Petitioner White, a black male, was hired to fill one of these temporary positions beginning October 25, 1989. The employment contract clearly advised Petitioner the position was temporary, but it was anticipated that the job would last approximately ten weeks. Pursuant to the contract, Petitioner could resign at any time and Respondent could terminate the relationship at any time, with or without cause. Three of the people hired were black, one was Hispanic and two were white. All six temporary employees signed the same type of employment contract. About one month after Petitioner was hired, the front end supervisor observed that the store did not need all six temporary security guards for the season as originally anticipated. It was decided that one of these employees would be terminated. During Petitioner's employment, both the front end supervisor and the assistant front end supervisor found working with him to be difficult. Petitioner often challenged the directives given to him by his two supervisors and was critical and argumentative. He complained about scheduling, objected to break procedures and voiced protest about the small amount of time allowed for breaks. Of all of the temporary employees, Petitioner White was the most obstreperous in his relationship with supervisors and other employees. After discussion between the two supervisors, it was decided that he would be the employee asked to leave. On Friday, December 1, 1989, the front end supervisor resolved that Petitioner would be dismissed before the week was out. The work week ran from Monday through Sunday. In an unrelated event that took place after the termination decision was made, Petitioner White and another temporary security employee had an argument during their shift together. The squabble took place in the presence of customers at the front of the store. It was quickly suppressed by the assistant front end supervisor. After the front end supervisor became aware of the incident, she decided to complete the planned dismissal of Petitioner before his shift ended on that day because his disruptiveness was interfering with employee relations to a greater degree. Her decision was communicated to the store manager and he agreed to be close by when she discharged the Petitioner. When Petitioner was told that his employment was terminated because there was not enough work for six temporary employees, he did not believe the stated reason. He erroneously assumed the adverse personnel action was based solely upon the earlier embroilment with his co-worker. This argument hastened the planned termination by two days, but it was not the deciding factor. Overhiring of temporary seasonal employees is a legitimate, nondiscriminatory reason for termination of temporary employees. There has been no showing that the reason stated for the termination was pretextual. The store manager approached Petitioner and the supervisor after the termination was announced but before the Petitioner had ended his loud protest of his supervisor's decision. The store manager told Petitioner to keep quiet and that he was "damn fired." Petitioner responded to the store manager's pronouncement by saying, "Brother, don't use no damn to me." The store manager then asserted they were not brothers. He called Petitioner a "damn nigger." Petitioner left the workplace, even though he had not cleaned out his locker and his shift had not ended. The derogatory comments relating to race were abusive and took place in the working environment while Petitioner was still in the status of an employee who was going through the discharge process. The use of the racial epithet by the store manager was demeaning and disconcerting. The next day, when Petitioner returned to clean out his locker, the store manager attempted to apologize for his derogatory comment. Petitioner did not accept the apology. Respondent Pace has well established policies which prohibit harassment in the work place. These policies include a prohibition against verbal comments that are derogatory in nature relating to another's race. Harassment of this type is not tolerated at any level of the company and will result in severe disciplinary action, up to an including termination of offending persons. Respondent Pace was not made aware of the store manager's use of the racial epithet except through this proceeding. The front end supervisor removed herself from the discussion between Petitioner and the store manager. She did not overhear the racial epithet. The use of the racial epithet was an isolated event, according to the facts adduced at hearing.
Recommendation Accordingly, it is recommended that the Human Relations commission enter a Final Order dismissing the Petition as an unlawful employment practice has not been demonstrated in this case. RECOMMENDED this 17th day of September, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 17th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3618 Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #5 - #7. Accepted. See HO #6. Rejected. Irrelevant. Petitioner was a temporary at will employee who was not subject to the company's personnel guidelines for company employees. Rejected. Contrary to fact. See HO #7 and #9. Accepted. Accepted. See HO #15. Rejected. Contrary to fact. See HO #9. Rejected. It was not proved that additional security employees were hired after Petitioner was terminated. In addition, seniority was not the criteria used for termination. The proposed finding is contrary to fact. See HO #5 - #6. Respondent's proposed findings of fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO #3. 3. Accepted. 4. Accepted. See HO #6. 5. Accepted. See HO #7. 6. Accepted. See HO #8. 7. Accepted. See HO #10. 8. Accepted. See HO #13. 9. Accepted. See HO #14 and #15. COPIES FURNISHED: ALBERT A WHITE 809 GRANITE RD BRANDON FL 33510 DONALD C WORKS III ESQ RUDEN BARNETT McCLOSKY SMITH SCHUSTER & RUSSELL 200 E BROWARD BLVD PO BOX 1900 FT LAUDERDALE FL 33302 RONALD M McELRATH EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570 DANA BAIRD ESQ GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570
