The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black female. As such, she is a member of a protected class. Respondent is a rental and sales company. It rents and sells household furnishings and appliances to consumers. Around the end of June 2008, Petitioner was hired by Respondent as an account manager at its Crawfordville store. Petitioner’s scheduled start time was 7:30 a.m. Petitioner’s account manager duties included delivery of household furniture and appliances to customers, loading and unloading her truck, and collection of money (also known as collecting credits) from customers. Petitioner’s primary delivery route was the south side of Tallahassee, Florida. Her direct supervisor at the Crawfordville store was James Shaw. Mr. Shaw is a Black male. Petitioner alleged that in July 2008, James Shaw began to sexually harass Petitioner, inviting her to a hotel and on one occasion, locking her in the store, pushing her against some furniture, and groping her. Shortly after allegedly being groped, Petitioner reported the incident to Craig Carricino, Store Manager at RAC’s Tallahassee store, and Kevin Besette, the then District Manager. She also called RAC’s complaint hotline. Petitioner reported the incident to Mr. Carricino because she knew him from past dealings with him at the Tallahassee store and felt more comfortable reporting the incident to him. Petitioner made it clear that she did not want to return to the Crawfordville store and desired to be transferred to another location. On the day of Petitioner’s complaint, Brad Donovan, Coworker Relations Manager, initiated an investigation into Petitioner’s claim. Additionally, Mr. Donovan was aware of Petitioner’s desire to transfer to another store and immediately offered Petitioner the opportunity to transfer to RAC’s Tallahassee location. Petitioner readily accepted the offer and was transferred to the Tallahassee store where Mr. Carricino was the manager. After Petitioner’s transfer, Mr. Donovan proceeded with his investigation into her allegations of harassment. He interviewed Mr. Shaw, who denied Petitioner’s allegations. He interviewed Petitioner, who provided him with the name of a witness to Mr. Shaw’s sexual advances. Mr. Donovan interviewed this other witness. The witness reported that he had not seen any inappropriate conduct on the part of Mr. Shaw towards Petitioner. Petitioner never advised Mr. Donovan or any other person at RAC of any other witnesses to the alleged sexual misconduct of Mr. Shaw. In essence, Petitioner’s allegations could not be established because no independent evidence existed to support her allegations of sexual harassment. However, Respondent promptly addressed Petitioner’s allegations of sexual harassment. It investigated her claims and immediately transferred her to another store. Respondent also counseled Mr. Shaw about sexual harassment, but took no further action against him because of the absence of any independent evidence to support Petitioner’s allegations. Clearly, Respondent exercised reasonable care to prevent and promptly address Petitioner’s allegations of sexual harassment. Irrespective of whether Petitioner’s allegations against Mr. Shaw are true or believed, RAC did not engage in an unlawful employment action against Petitioner because it acted appropriately in addressing Petitioner’s allegations based on the investigation and conclusions it had reached about Petitioner’s allegations. RAC was not obligated to do more even if Petitioner disagreed with the company’s decision not to discipline Mr. Shaw. After her transfer, Petitioner felt she was harassed/retaliated against by Mr. Carricino when she was “written up” for being late to work. Petitioner identified Scott Taff, who is White, as the only non-minority employee who had allegedly been treated differently than her. She based her assertion on the fact that Scott Taff was not fired when he was late after being ‘written up’ for tardiness. Without going into the mostly hearsay evidence presented at hearing, Petitioner’s own testimony revealed that she was not fired for being late several more times after being ‘written up’ and warned for such tardiness. Additionally, there was no evidence presented regarding Mr. Taff’s disciplinary history or that he had a chronic tardiness problem. Given these facts, the evidence did not demonstrate that non-minority or male employees were treated differently than Petitioner. The evidence, also, did not demonstrate that Petitioner was subjected to any retaliation for her earlier sexual harassment complaint. The evidence did show that her employer wanted her to be at work on time and endeavored to stress its desire to her. Such action does not constitute an unlawful employment practice, especially when the employee has a tardiness problem. Petitioner also alleged she was harassed/retaliated against when she was told that she would have to lift 150-lb. sofas, and, if she complained about the duty, she would be fired. Petitioner did not testify about any specifics regarding this allegation. However, Petitioner’s job required that she be able to deliver a variety of products made available by Respondent, including sofas. Moving furniture, loading and unloading her truck, and picking up and delivering furniture was not specifically required of Petitioner, but was required of all similarly-situated account managers. By her own testimony, Petitioner described times when she had help in moving furniture and times when she did not have help in moving furniture. The store’s manager testified that Petitioner, like other employees, received help moving furniture when other employees including himself, were available to help and not performing their own similar job duties. There was no credible evidence that Petitioner was denied help moving furniture based on her race, sex or in retaliation for her earlier allegations of sexual harassment. Finally, Petitioner alleged that she was harassed/retaliated against when she was not allowed to “collect credits” from customers because she was sent on deliveries and later disciplined for not “running these credits.” However, all account managers were required to collect money from customers and make deliveries. Petitioner was not singled out in being required to collect money from customers and make deliveries. All account managers had to figure out how to perform both functions. Petitioner’s testimony regarding being prohibited from collecting money on Saturday was not established by the evidence. The evidence showed that, for a short time, account managers were instructed not to use the computer system on Saturday mornings to help them in collecting money from customers because of some issue related to the computer system. However, the policy later changed to allow account managers to use the computer system on Saturday mornings. Moreover, there was no evidence that Petitioner could not otherwise collect money from customers without the aid of Respondent’s computer system. The computer may have made the collection process easier because customer contact information was stored in the computer system; however, the lack of use of that system on Saturday mornings did not prevent Petitioner from collecting money from customers. Customer information was available to Petitioner during the rest of Respondent’s time at work. Petitioner, again without any necessary specifics, claims that Mr. Taff was allowed to collect money on Saturdays. No computer records were introduced into evidence and no evidence of the time period when Mr. Taff allegedly collected money on Saturdays was adduced at hearing. Respondent denied that Mr. Taff collected money when he was not supposed to. The evidence did not demonstrate that Mr. Taff or any other similarly-situated employee was treated differently than Petitioner. The evidence did demonstrate that Petitioner had the lowest collection rate at the Tallahassee store and was consistently below that store’s standard for the collection of money. The District manager, Carney Anderson, who is Black, testified that he had no trouble meeting company expectations for collecting money from customers when he was an account manager in a similar, but larger, area and saw no reason why Petitioner could not meet the expectations of the company in the area she was assigned in Tallahassee. Petitioner did not perform up to the Respondent’s standards for the collection of money from customers. Importantly, a former male employee who failed to adequately collect money from customers was similarly disciplined for failing to perform this important job duty. Because Petitioner failed to meet the standards of the Respondent for the collection of money from customers, Mr. Carricino informed Petitioner that she would be terminated for her inability to meet those standards. Mr. Carricino offered Petitioner the option of resigning and assured her that he would provide a favorable recommendation to her, if she did. Petitioner elected to resign and wrote a letter of resignation. The letter did not mention discriminatory or retaliatory treatment and read as follows: “Thank you for everything. I am grateful for the opportunity that you gave me to work at Rent-a-Center, but at this time, I am unable to perform my duties as a mother to my kids due to the overwhelming hours. I am giving my two weeks notice today 11/10/08 in hopes of returning one day in good standing.” Mr. Anderson, who worked at the Tallahassee store every Monday, spoke with Petitioner about the basis of her resignation. She did not mention any belief she had that she had been retaliated or discriminated against. During Petitioner’s final two weeks, Mr. Anderson noticed a serious decline in Petitioner’s attitude and a decline in her work performance. He was not surprised because he had seen other short-term employees have a similar decline. Therefore, on November 15, 2008, Mr. Anderson instructed Mr. Carricino to terminate Petitioner’s employment immediately and Petitioner was terminated that day. There was no evidence that Respondent’s reason for terminating Petitioner was false or a pretext to hide discriminatory or retaliatory behavior. Moreover, given the short time that Petitioner had remaining at RAC and the fact of her resignation; the evidence did not demonstrate that Petitioner suffered an adverse employment action when she was terminated early during her final two weeks with RAC. Given these facts and the lack of evidence to support Petitioners allegations, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 30th day of September, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2009. COPIES FURNISHED: Massa Dionna Hill 1613 Quazar Road Tallahassee, Florida 32311 Andrew Trusevich, Esquire Rent A Center, Inc. 5501 Headquarters Drive Dallas, Texas 75024 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent due to his marital status.
Findings Of Fact Respondent is a corporation that sells and services blueprint machines and the supplies needed to operate such machines throughout a multi-regional area in the United States. Pamela Turner was the Director of Operations for Respondent. Her office was in the Pensacola, Florida, branch offices of the Respondent. During 2011, Respondent was looking for a person to fill a field technician position covering parts of Florida and Georgia. At the time, the territory that this position serviced ranged from Tallahassee, Florida, south to Perry, Florida, north to Valdosta and Albany, Georgia, and west to Destin, Florida. Importantly, the technician for the above area did not work out of Respondent's Pensacola office, but was remotely located somewhere within the position's service area. Further, parts and inventory were shipped to the remote location used by the field technician. For that reason, it was required that the field technician for the area possess the utmost honesty and trustworthiness. Additionally, it was very important that Petitioner and, specifically, Ms. Turner have a high degree of confidence in any person selected for the field technician position. In November 2011, Petitioner interviewed for the Field Service Technician position with Respondent. Petitioner interviewed with Pamela Turner and Michael Miller, the head of the company. Pamela Turner advised the Petitioner that due to the remote location of the job, it required the utmost in terms of honesty and trustworthiness of the person hired since the employee would be unsupervised most of the time and would possess valuable tools, parts and inventory at the employee's remote location. On his application, Petitioner disclosed the address where he lived as 1654 Eagles Watch Way, Tallahassee, Florida. The address on Petitioner?s application was his mother?s home and was the place where he lived. Petitioner understood that this address also would be considered the address for his office and the address where parts and inventory would be shipped. During Petitioner?s interview, Petitioner was never asked any questions by the interviewers about the status of his marriage. The fact that Petitioner was married came up during casual conversation in relation to the travel required for the job. Additionally, during the course of the interview with Ms. Turner, Petitioner told Ms. Turner that Petitioner?s wife would like for him to get this job because it meant more time at home with her. However, Petitioner did not inform any interviewer that he was separated from his wife because he did not feel that it had anything to do with his ability to perform the job he was interviewing for. He likewise did not inform any of the interviewers that he was not living with his wife at her home or that he occasionally stayed at his wife's house because they were trying to work things out between them. Petitioner was never asked specifically during the interview who owned the address that was listed on his application. However, Ms. Turner reasonably assumed that it was Petitioner?s and his wife?s home. The Petitioner was hired for the position of field service technician on December 12, 2011. His employment contract ran from December 12, 2011, through December 11, 2012. After Petitioner began his employment, Petitioner shared with a co-employee, Paul Springer, that he was separated from his wife. Paul Springer was a church counselor and suggested that he could help Petitioner and his wife by counseling them. In January 2012, while talking with another employee, Pamela Turner learned that Petitioner was living with his mother and that Petitioner was separated from his wife. This information was of concern to Pamela Turner because she questioned where parts Petitioner utilized in the maintenance and repair of customer photocopying machinery were being shipped. She was concerned because she thought this was Petitioner's and his wife's home only to discover that the home did not belong to Petitioner. Ms. Turner felt that Petitioner should have disclosed the fact that the address on his application was not owned by him and felt that the lack of disclosure was the same as misrepresenting information to her. Further, Ms. Turner, based on her earlier incorrect assumptions about Petitioner's address and living in the marital home, asked Petitioner why he had not told her about the address as it related to the circumstances of Petitioner's marriage. Ms. Turner incorrectly felt that Petitioner had misrepresented the circumstances of his marriage, which called into question the ownership of the address to which parts and inventory were being shipped. As a result, the confidence that Ms. Turner had in Petitioner was undermined. Petitioner explained to Ms. Turner that he and his wife were working on things and he was between his wife?s residence and his mother?s residence, but that he was not telling different stories. Further, the evidence demonstrated that Petitioner did not actively misrepresent anything to Respondent. However, Ms. Turner honestly felt that she could no longer trust Petitioner and honestly believed through her worldview that Petitioner had misrepresented himself to her. On January 30, 2012, she advised Petitioner that he was being terminated for misrepresentation. Given Ms. Turner's honest beliefs, Respondent's rationale for terminating Petitioner was not a pretext for discrimination. More importantly, given these honest beliefs, the evidence did not demonstrate that Petitioner's termination was based on Petitioner's separated marital status, but on the lack of trust that Petitioner's supervisor had in him. After the termination, Petitioner made no report of the alleged discrimination pursuant to the Respondent's written Problem Resolution policy and/or Equal Employment Opportunity policy both of which provided a problem and discrimination complaint process within Respondent's company. Petitioner was aware of these policies. However, Petitioner did not utilize these complaint processes because there was no one to escalate the complaint to since his supervisor, Pamela Turner, and the head of the company, Michael Miller, were both involved in the decision to terminate Petitioner. Therefore, Petitioner's lack of use of Respondent's discrimination and problem complaint processes was reasonable under the circumstances. Further, no adverse action has been taken against any employee of Respondent due to that employees? marital status. Thus, there are no similarly situated employees outside Petitioner's protected class to which Petitioner can be compared. Moreover, Petitioner offered no evidence at the hearing on January 16, 2013, that he lost any wages due to the alleged discrimination. Ultimately, however, the evidence was insufficient to demonstrate that Petitioner was terminated due to his separated marital status. As indicated, Ms. Turner honestly felt she could not trust Petitioner in a position that required her to have the highest confidence in that employee. Therefore, based on these facts, Respondent did not discriminate against Petitioner based on his marital status and the Petition for Relief should be dismissed.
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 dismissing the Petition for Relief. DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2013. COPIES FURNISHED: Daniel Phillips, Esquire Phillips Law Firm 1413 North Randolph Circle Tallahassee, Florida 32308 Michael John Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Tiffany Rousseau Cruz, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Progressive American Insurance Company is a property and casualty insurance company. It markets auto insurance to drivers who are ordinarily non- insurable by standard insurance companies. The Company's claims organization includes 18 claims offices throughout the state, including the relevant Gainesville claims office. The Petitioner was hired as a claims office assistant on December 17, 1986. She worked in that capacity in the Gainesville office throughout the course of her employment. Claims office assistants are clerical employees who perform secretarial tasks, such as typing, filing and answering the telephone, and also perform insurance work related to the claims processing, such as personal injury protection (PIP) and small loss claims. Claims office assistants, such as the Petitioner, also provide support to the adjusters in the office by typing their dictation and taking down information on accident reports or loss reports, as well as creating files. The Gainesville claims office is a small branch office and as of December 1, 1986, was staffed by a Branch Manager, Douglas Helton, two claims adjusters and two claims office assistants, one of whom was the Petitioner. Douglas Helton was promoted to the position of Branch Manager in the Gainesville office in mid-1986. He hired Debbie Fuller and supervised her throughout her tenure with the Company. Progressive has adopted a business philosophy known as "management by objectives." Under this philosophy, each employee is assigned objectives which explain what is expected and the standards involved with the job. The employee's performance is then measured against those standards. Employees receive an overall numerical assessment of their performance on a 1-4 scale. The average score on performance evaluations in the Florida division of the Company has ranged from about 2.86 to 2.92. When the Petitioner was hired, she was placed in a three-month training plan by the Branch Manager and was assigned a set of objectives. Her performance was evaluated against these objectives at the end of 90 days, and she was given a 2.44 overall rating. Mr. Helton regarded her work as satisfactory at that time. The Petitioner was then assigned another set of three-month objectives. These objectives included the assignment to her of personal injury protection work, as well as small losses work for the first time. She was given individualized training by Helton and the other claims office assistant, Christine Bivens. She applied for and obtained a temporary license to do PIP claims work, which was valid from March of 1987 to March of 1988. She received another performance evaluation at the end of the second three-month period, with a score of 2.597. Mr. Helton, again, described her performance as satisfactory, although her score was below average. In June of 1987, Helton assigned the Petitioner another set of performance objectives, this time for six months. These objectives also included the assignment to her of PIP claims work. Her performance was evaluated again at the end of six months in December of 1987. This time, she scored 2.0, which is the lowest score an employee can receive before he or she is put on a 30-day performance probation, also known as "short term objectives." The Petitioner's performance was deficient because of non-timely processing of claims. Although her PIP case load was only about one-quarter of that of claims assistant, Christine Bivens, she allowed PIP files to "fall off her diary." This means that the medical bills involved were not being paid or timely paid. One such failure to pay medical bills actually resulted in a lawsuit being filed against her employer. When Mr. Helton reviewed some of her files in the process of preparing her performance evaluation, he discovered that most of the files had not been timely processed. She also received a poor rating for her work in typing dictation. Mr. Helton received complaints from all of the workers in the office concerning the Petitioner's typing skills and had orally counseled her in the past regarding this aspect of her work. Another major area of performance deficiency involved the Petitioner's failure to secure a permanent PIP and small loss license. She took the examination for the license and did not pass it. She was scheduled to take it again in November of 1987, but failed to do so. Mike Painter, the claims adjuster, had a bad experience with the Petitioner's work performance. He had a problem with her typing, which was characterized by a high level of inaccuracy and delay. He became sufficiently dissatisfied with her typing that he began doing his own typing. He discussed these problems with Mr. Helton on a number of occasions. He also had experience with the Petitioner taking down inaccurate information on loss reports. Mr. Painter found the Petitioner erratic in her attention to detail and that her work pace was significantly slower than the rest of the people in the office. Christine Bivens, another co-worker, also testified regarding the Petitioner's performance. Her initial performance during the first six months was acceptable, but then she began slowing down her work production. Because of this, Ms. Bivens had to put more time, herself, into the dictation typing and the loss reports She complained to Mr. Helton, as well; and Mr. Helton counseled the Petitioner concerning these deficiencies. After these counseling sessions, she would improve her performance for a short while; but the improvement was only temporary. Mr. Helton prepared Ms. Fuller's final performance evaluation around December 17, 1987. The two of them discussed the evaluation; and although she was not content with it, she ultimately accepted it. In the meantime, the Petitioner had become pregnant and began discussing the matter of maternity leave with Mr. Helton. In October or November of 1987, she had several conferences with him about the subject matter of her leave. Two of these conferences were attended by Christine Bivens. During the course of these meetings, Ms. Fuller requested a maternity leave of eight to 12 weeks. Mr. Helton told Ms. Fuller that she would not be provided a 12-week leave. Ms. Bivens testified that Mr. Helton told Ms. Fuller that he could not approve a 12-week leave. Sometime in December of 1987, Ms. Fuller began having premature contractions and told Mr. Helton she would not be able to work a full eight-hour day. Mr. Helton accepted that situation and told her she could work whatever hours per day she wanted to work. She thus began working five or six hour days. On December 17, 1987, Mr. Helton wrote a memorandum to the Human Resources Office of his Company, regarding Ms. Fuller's performance and her upcoming maternity leave. In that memorandum, he criticized her performance, writing that she demonstrated "minimal commitment to excellence and handles her responsibilities in a passive manner." He also noted that Ms. Fuller had requested a three-month leave of absence which he had refused. In this memorandum, Mr. Helton also indicated that he intended to hold her employment position open for her for a period of only four weeks. When he drafted this memorandum and prepared the Petitioner's performance evaluation, he gave some consideration to putting her on "thirty-day objectives." Under the circumstances of her imminent maternity leave, he decided that such an action would be inappropriate and assigned her objectives for May 17, 1988 instead. The Respondent has a policy concerning leaves of absence by which employees with less than one year of service are eligible for a four week leave of absence. Employees with between one and five years of service are eligible for a six-week leave. The Petitioner had one year of service, effective December 17, 1987. Therefore, she was qualified; and, indeed, the Respondent determined that she should have a six-week leave of absence related to her pregnancy. The Petitioner's supervisor, Mr. Helton, advised the Petitioner that she was not entitled to and would not receive a 12-week leave of absence, as she requested. Ms. Fuller also acknowledged in her testimony that Tammy Taylor, who worked in the Human Resources or personnel office of the Respondent, had informed her that she was entitled to a six-week leave of absence. Her colleague, Ms. Bivens, recalled that both Mr. Helton and Ms. Fuller had checked with the Human Resources office of Progressive and that both had learned that she was entitled to a six-week leave. Robin Hart, who worked in the Human Resources office at the time, told Ms. Fuller that she was entitled to and could take a six-week leave of absence and that any leave past that six-week period would be unapproved, as not being in accordance with Company policy. The Petitioner received a note from her treating physician on December 22, 1987 instructing her to discontinue her activities, including regular employment as of that date. Ms. Fuller initially testified at the hearing that she then met with Mr. Helton on that date, gave him the note and had a conversation with him concerning her leave of absence. She later changed her testimony, however, upon introduction by Progressive of evidence showing that Mr. Helton was on vacation on that date. She also changed her testimony regarding her last day at work. She had initially testified that the date was January 4, 1988, but following testimony by Christine Bivens, her co-worker, to the effect that her last day was December 29, 1987, she agreed that was her last day of work. Thus, she continued to work after her doctor had instructed her to cease her employment pending her delivery. Ms. Fuller, instead of personally discussing her leave with Mr. Helton on the final occasion before she actually left her employment, left a note for him on his desk while he was on vacation, along with her request for a 12-week leave of absence from January 4, 1988 through March 29, 1988. Upon his return from his Christmas vacation, Mr. Helton saw the leave request and reviewed it. He checked the box on the form marked "cannot approve" and wrote on the form "maximum allowed for 1 yr. employee is 4 weeks. Debbie requests excess of 12 weeks." Mr. Helton then submitted the leave of absence form to the Human Resources office in Tampa and conversed with Marilyn Kaschner of that office concerning the length of the requested leave and how long he should leave the Petitioner's job open for her. Ms. Kaschner informed him that the Petitioner was entitled to a six-week leave of absence based upon her tenure with the Company, and Mr. Helton agreed with that. That conversation occurred sometime between January 15th and the end of January of 1988. At approximately this time, Mr. Helton hired Wendy Rosenberg, as a full-time claims office assistant, and Renee Jackson, as a part-time claims office assistant. Ms. Fuller's replacement was required because the Gainesville office was very busy during the fall of 1987 and the early part of 1988. Ms. Rosenberg began employment on January 15, 1988, and Ms. Jackson was employed on January 25, 1988. Ms. Jackson was hired into a newly-approved part-time position, and Ms. Rosenberg replaced Ms. Fuller. Both employees were advised when they were hired that if Ms. Fuller returned upon the expiration of her maternity leave, she would have her choice of either the full-time or part-time positions which Ms. Rosenberg and Ms. Jackson were filling. In fact, Ms. Fuller did not return within the six-week time period. Mr. Helton subsequently contacted his supervisor, Jim Krahn; and they decided voluntarily to hold her position open for another week. She was eventually terminated, effective February 29, 1988, some nine weeks after her last day of work. Mr. Krahn at this time authorized Mr. Helton to permanently hire Ms. Rosenberg and Ms. Jackson. Ms. Fuller testified about a number of conversations she allegedly had with Mr. Helton during 1988. According to Ms. Fuller, the first one took place about the second week of January at the Gainesville office, attended by Ms. Fuller, Mr. Helton, Ms. Bivens and two claims adjusters in the office. Ms. Fuller maintains that Mr. Helton told her that he had turned in her "leave papers" and that things were fine and that there was no problem. Mr. Helton did not recall the conversation, but was positive that he would not have told her that everything was fine with her leave request because it was an excessive request. In any event, Ms. Bivens, who was present during the conversation, had no recollection of the tenor of it. However, under the circumstances under which the conversation apparently was made with a number of other employees present, it is unlikely that any in-depth discussion of the propriety of the leave request was entered into. In any event, Ms. Fuller had been informed otherwise, by the Human Resources office in Tampa, that she was only entitled to six weeks of leave. Both Mr. Helton and Ms. Fuller had conversations in March regarding her employment. Mr. Helton noted that the dates of the conversations were March 16 and 21, 1988, as he noted them on Ms. Fuller's termination form. During the first conversation, he advised Ms. Fuller that he did not have a position for her in his office. This is when Ms. Fuller learned of her ultimate termination. He did not have a conversation with her between February 29th and March 16th because he thought that Human Resources was going to send her a termination letter. The first conversation with her thus occurred on March 16th concerning the subject of her termination. Following this conversation, Ms. Fuller called Ms. Hart at the Human Resources office and informed her that Mr. Helton had guaranteed her a job when she wanted to return from maternity leave. Ms. Hart advised Mr. Helton of this representation and he denied it. Subsequently, on March 21st, there was an angry conversation between Mr. Helton and Ms. Fuller concerning what Mr. Helton believed to be Ms. Fuller's misrepresentation of his earlier statement concerning her job tenure and the availability of a position whenever she wanted to return. In any event, Mr. Helton, on March 21, 1988 executed Ms. Fuller's termination form and on the second page of the form, indicated she was ineligible for rehire. He considered her ineligible because her past performance bad been substandard and also because he felt that she had made misrepresentations to the Human Resources office concerning the conditions under which he had informed her that she could return to work. Accordingly, when there was later an opening in the Gainesville office for a claims office assistant, he did not consider offering Ms. Fuller that employment. Ms. Marilyn Kaschner testified about the company leave policy and statistical records of leaves of absence for the claims organization of Progressive. She reviewed and compiled a list of all leaves of absence for the last two and one-half years for the claims office portion of the company's operations in Florida. This list showed that eight employees, in addition to Ms. Fuller, had taken leaves of absence during that time period. Four of those leaves of absence were for childbirth. In each instance, the employee was allowed to return to her job. In those instances, the employees had taken leaves of absence which were in accordance with the company's leave of absence duration policy. It is also noteworthy that the Petitioner was accorded short- term disability insurance benefits during her leave of absence in accordance with company policy.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petition of Debbie Fuller be dismissed. DONE and ENTERED this 4th day of December, 1989, in Tallahassee Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-480 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but subordinate to the Hearing Officer's findings on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted, except for the last sentence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Respondent's Proposed Findings of Fact Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: John P. McAdams, Esq. CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. P.O. Box 3239 Tampa, FL 33601 Carla D. Franklin, Esq. P.O. Box 694 Gainesville, FL 32601 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
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 the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, 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 February, 2009.
The Issue Whether the Petitioner, a member of a protected class, was terminated from his employment with the Respondent in the Hospitality Department at the Grand Floridian Hotel on or about March 18, 1993 on the basis of his national origin (Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. The Petitioner was employed by the Respondent at its Grand Floridian Hotel as a valet/greeter/bellman in the Hospitality Department during the relevant period of time, including March of 1993. The Petitioner is of Hispanic origin from the Dominican Republic and is a member of a protected class. In approximately October of 1988, the Petitioner began his employment with the Respondent at the Contemporary Hotel as a valet/greeter. In April of 1989, the Petitioner received a written reprimand for not logging in a piece of luggage. The Petitioner did not grieve the April 1988 written reprimand. In May of 1989, the Petitioner transferred to the Respondent's Grand Floridian Hotel, where he was a valet/greeter/bellman. In February of 1990, the Petitioner received an oral reprimand for three separate incidents of improperly logging luggage. 9. The Petitioner could not recall if he grieved the February, 1990 oral reprimand. In August of 1990, the Petitioner again received an oral reprimand, this time for mixing up luggage while loading it into vehicles. The luggage had to be mailed to each rightful owner at the Respondent's expense and caused an inconvenience to the guests. The Petitioner could not recall if he grieved the August 1990 oral reprimand. In December of 1991, the Petitioner mishandled luggage by failing to tag all of a guest's bags. In May of 1992, the Respondent's management discussed with the Petitioner his failure to tag a piece of luggage. In July of 1992, the Petitioner received a verbal reprimand for failing to log in a guest's luggage. The Petitioner's verbal reprimand in July of 1992 was the result of a direct complaint by a guest, who was required to search for a piece of his own luggage in the Hotel's storage room. The Petitioner could not recall if he grieved the July 1992 verbal reprimand. In September of 1992, the Petitioner received a verbal reprimand for approaching a guest to discuss splitting a tip with a bellman, an impermissible practice. The Petitioner was not suspended for this incident. In December of 1992, the Petitioner received a written reprimand for failing to follow proper procedures regarding a guest's luggage on two separate occasions. The Petitioner did not grieve the December 1992 written reprimand. The Respondent decided not to consider the two incidents in December of the Petitioner's luggage-mishandling as separate incidents for progressive discipline purposes, even though such action was permissible under the collective bargaining agreement. The Respondent's decision not to consider the two December 1992 incidents separately for progressive discipline purposes was based upon the Petitioner's length of service and his good performance in other areas. The Petitioner had a good attitude, had good people skills, and had received good guest comments during the course of his employment. In December of 1992, the Petitioner understood that he was in the progressive discipline process. In January of 1993, the Respondent met with the Petitioner and offered to remove him from the responsibility of handling luggage by putting him in a non-tipped, dispatcher position. Also, in January of 1993, the Respondent and the Petitioner's union representative were working together to preserve the Petitioner's job. The Petitioner was reminded by his union representative about his previous reprimands and that one more incident would cause his termination. The Petitioner was told by his union representative that the purpose of moving him to a dispatcher position was to get him away from the luggage-handling area. The Petitioner was told that if he remained free of similar reprimands for one year, he could return to the tipped position of valet/greeter with no loss of seniority. After initially refusing the dispatcher position, the Petitioner accepted. The Petitioner was given the shift that he requested when he was transferred to the dispatcher position. In February of 1993 while on duty as a dispatcher, the Petitioner received a three-day suspension, without pay, for using poor judgment. He interrupted a valet while the valet was servicing a guest. The Petitioner did not grieve the February 1993 suspension. The Petitioner's action as a dispatcher of interrupting a valet was grounds for the valet to grieve such actions to the union. The suspension in February of 1993 for the Petitioner's poor judgment as a dispatcher was not the basis for his termination. The Petitioner requested a reclassification back to valet/greeter/bellman position. The Petitioner understood that one more incident of any kind would result in his immediate termination. The Petitioner requested the change from dispatcher back to valet/greeter/bellman for personal financial reasons; and his union representative also advised him that if one more incident of any kind occurred, he would be terminated. On March 16, 1993, the Petitioner mishandled luggage. The Petitioner did not properly log in a guest's luggage (a garment bag). 35. The Petitioner was terminated on March 18, 1993 for poor job performance. The progressive discipline which the Petitioner received was consistent with the union contract. The contract provides that an employee can be terminated for the next offense following a single written reprimand. The Petitioner had the opportunity to grieve all of the reprimands he received, and his union representative was aware of the actions taken in connection with the Petitioner's employment. The Petitioner grieved his termination, and that grievance was denied. The Petitioner failed to provide evidence of any similarly-situated employee who was not terminated for mishandling luggage on as many occasions as he had. The Petitioner failed to provide evidence regarding any discrimination against other Hispanic employees, other than his own belief, speculation or conjecture. The Petitioner understood that the Respondent's management was closely checking into everyone's performance. Management asked all of the employees at the Grand Floridian Hotel to help the Hotel earn a five-star rating. The Petitioner was never part of the Respondent's management and did not attend manager meetings. During the course of his employment, the Petitioner was chosen to train other employees because he knew the proper procedures for his valet/bellman/greeter position. The Petitioner knew the proper procedures for handling luggage received from guests. The Petitioner knew the proper procedures for logging in and handling bags. The Petitioner received copies of the Respondent's policies and procedures for a valet/bellman, including luggage handling. The Petitioner did not report many of the alleged discriminatory actions of his co-workers to management. The Petitioner conceded that on those occasions when he did make reports to management, these alleged actions stopped. The Petitioner received the overtime and schedules which he requested because of his seniority. The number of minorities employed at the Respondent's Orlando, Florida, work site has increased from 1993 to 1996. The number of minorities employed at the Respondent's Grand Floridian Hotel has either remained the same or increased from 1992 to 1995. In January of 1993, the number of minorities in the Grand Floridian Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were four Hispanics in the valet/greeter classification. In February of 1996, the number of minorities in the Grand Floridian Hotel's Hospitality Department (including valets, bellmen, greeters and dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in the valet/greeter classification. The Petitioner failed to produce any evidence of an overall plan by the Respondent's management to eliminate minorities, including Hispanics, from employment at the company. The Respondent allows employees to review their employment records at any time upon request. The Petitioner presented only his own beliefs, speculation or conjecture as a basis for his claims of national origin 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 the Petition for Relief. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990 The following constitute my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. The Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by the Respondent: Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61. Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 21, 32, 40. COPIES FURNISHED: Mr. Jorge V. Jimenez 2716 FDC Grove Road Davenport, Florida 33837 Myrna L. Galligano, Esquire Garwood, McKenna & McKenna, P.A. 731 North Garland Avenue Orlando, Florida 32801 Dana C. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact The Petitioner, Cindy Dexter is a 32 year old black female. She was employed by Respondent in March, 1987, through July 19, 1989. Petitioner was terminated by Respondent for excessive absenteeism and insubordination. Initially, Respondent was employed as a data entry operator. Later, Petitioner was moved to the position of clerk typist specialist. The new position did not involve an increase in pay. However, the new position presented more opportunities for promotion. The data entry position did not have such opportunities for promotion. Respondent offered Petitioner the new position in order to give her better opportunities for promotion. Petitioner's main duty was to process the files generated by the complaint analysts in her section. Some data entry and typing was involved in the processing of these files. Complaint files which would remain open after being reviewed by a complaint analyst entailed more work than complaint files which would be closed after review by a complaint analyst. The clerical staff was divided into work groups consisting of two typists processing open files and one typist processing closed files and the overflow from the open files. Each member of the group was expected to cover the work of an employee who was absent to the extent such coverage was possible. Petitioner initially processed complaint files which were to remain open. In the beginning of her employment, Petitioner was considered to be at least an average employee who performed her duties well. However, at some point in time, Petitioner's absences from work increased until she was absent about 40% of the time. During the last six months, Petitioner was absent approximately 12 weeks and was not at work at all for approximately the last month of her employment. The only days she was present during the last month were two days during which she was present for only about an hour on each occasion. Most, if not all of her absences were supported by a doctor's excuse. However these excuses were not specific as to the infirmity or infirmities which precluded Ms. Dexter from attending her employment. Towards the end of her employment Ms. Dexter refused to give her supervisor any details regarding the nature of her illness and told her supervisor, "it was none of her business." At the hearing Ms. Dexter testified her absences were due to fatigue associated with some unspecified infirmity which she declined to disclose. Ms. Dexter's increased absenteeism placed a great deal of pressure on the work group she was in due to the fact that her work had to be covered by the other typists as well as some of the complaint analysts. Tolerance of this increased work load differed among the specific individuals involved depending on each individual's expectations of the quality and quantity of his or her work and that individual's knowledge of the mysterious details causing Petitioner's absences. Put simply, to some of the individuals Petitioner worked with, her absenteeism and the concomitant decrease in the quality and quantity of Petitioner's work was tolerable and to others its was intolerable. Petitioner's absenteeism and its effects were particularly intolerable to Ms. Dexter's supervisors. Relations between Petitioner and her supervisors became strained. 1/ In 1988, Petitioner received a reprimand for excessive absenteeism. At some time in 1988 she was to receive a three day suspension. However, the suspension was retracted when Petitioner appealed the disciplinary action to her union. At about the time the retraction occurred, Robin Harmom became Petitioner's supervisor. Petitioner continued to be excessively absent from work. About 6 weeks prior to Petitioner's termination, Ms. Harmom switched Petitioner from working on the more work intensive open files to the less work intensive closed files. 2/ Ms. Dexter took great umbrage at the change and refused to do the work assigned to her by her supervisor. Petitioner's on-going unilateral strike constitutes insubordination. 3/ The only evidence of any disparate treatment submitted by Petitioner was in relation to Louise Bull. Ms. Bull is a white female employee of Respondent. She was employed in the same capacity as Petitioner and apparently had had some absentee problems. She had received a written reprimand for excessive absenteeism. There was no evidence submitted that Ms. Bull refused to do the work assigned to her. 4/ She remains an employee of Respondent. The evidence regarding Ms. Bull's absenteeism was anecdotal in nature and very vague. What was suggested by this very vague anecdotal evidence is that Ms. Bull's attendance improved while Petitioner's attendance did not. 5/ More concrete evidence of Ms. Bull's actual attendance record would have had to have been submitted by Petitioner before any adequate comparisons between Petitioner's and Ms. Bull's attendance records could be made for purposes of establishing disparate treatment. In any event, such vague evidence falls short of demonstrating discriminatory disparate treatment on account of race. No other substantive evidence of disparate treatment was submitted by Petitioner. Since Petitioner's absenteeism and refusal to do her work assignments constitute sufficient reasons for termination, Petitioner has failed to demonstrate by a preponderance of the evidence that she was discharged due to her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petition be dismissed. DONE and ENTERED this 15th day of August, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 15th day of August, 1990.
The Issue The issues are whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment in December 2001, and if so, what relief is appropriate, if any.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is an African-American female. She was born in November 1984, and she is currently 18 years old. Respondent is the largest franchisee of Popeye's Chicken and Biscuits (Popeye's) restaurants in the country. Respondent operates over 160 Popeye's restaurants in seven states, including Florida. Popeye's is a fast-food restaurant which specializes in fried chicken and biscuits. One of the Popeye's restaurants operated by Respondent is located in Sanford, Florida. Respondent acquired the franchise for the Sanford restaurant in mid-September 2000. In December 2000, Petitioner was hired by Respondent as a "crew member" at Popeye's in Sanford. Petitioner was 16 years old when she was hired. The general duties of a crew member include cleaning the interior and exterior of the store, battering and seasoning chicken, frying the chicken, working the cash registers, washing dishes, and other duties assigned by the shift manager. Crew members operate power-driven machinery, such as bakery-type mixers (for making biscuits) and meat marinators (for seasoning the chicken), and they also use slicing machines for preparing coleslaw and cutting chicken. Crew members work as a "team" and, because there are only four to five crew members per shift, each crew member is expected to be able to (and is often required to) perform each of the duties listed above. During the course of her employment, Petitioner typically worked as cashier at the drive-thru window or the counter in the lobby, although she did perform other duties. Petitioner acknowledged at the hearing that she could not perform some of the job duties, such as cooking the chicken, because of her age. Petitioner was often required to walk past the fryers where the chicken was cooked while performing her other duties, and she was thereby exposed to the hot grease which had a tendency to splatter when the chicken was frying. On occasion, Petitioner had to go into the walk-in freezer in the kitchen area of the restaurant. She also carried the hot water heaters used to make tea, and she used the bakery-type mixers and meat slicers. There are dangers inherent in the duties performed by crew members. For example, the grease in the fryers is in excess of 300 degrees, and it often splatters onto the floor making the floor slippery. The floor of the walk-in freezer can also be slippery due to ice. Because of the team approach utilized by Respondent and the nature of Popeye's business, it would be difficult to limit the duties performed by Petitioner (or other minors) to those not involving hazards such as exposure to hot grease or use of dangerous machinery. Petitioner's starting salary was $5.75 per hour. Her salary remained the same during the entire term of her employment at Popeye's. Crew members work either the "day shift" or the "night shift." The day shift begins at 8:00 a.m. and ends at 4:00 p.m.; the night shift begins between 3:00 p.m. and 4:00 p.m. and ends after the restaurant closes, which is often after 11:00 p.m. Petitioner primarily worked the night shift since she was still in high school during the time that she was working for Popeye's, and she worked later than 11:00 p.m. on occasion. Because of the small number of crew members working on each shift, it was highly impractical for minor employees to be provided the 30-minute breaks every four hours as required by the Child Labor Law. This was a particular problem on the night shift since a minor employee such as Petitioner, who began her shift at 3:00 p.m. or 4:00 p.m., would be taking a break between 7:00 p.m. and 8:00 p.m., which was one of the busiest times for the restaurant. Petitioner only worked part-time at Popeye’s. Her employment earning records for June 2001 through December 2001 show that even during the summer months she worked no more than 46 hours during any two-week pay period. Those records also show that Petitioner typically worked significantly fewer hours during the school year. Petitioner's employment earning records show that she worked an average of 29.25 hours per pay period or 14.625 hours per week. That average is a fair measure of the hours typically worked by Petitioner because the median is 29.24 hours per pay period and, even if the periods with the highest and lowest number of hours are not considered, the average would be 30.02 hours per pay period.2 In August 2001, Petitioner began to hear "rumors" from her co-workers and shift managers that she "had to be gone" soon. She understood those rumors to mean that she would be "laid off," and she further understood that it was because she was a minor. The "rumors" that Petitioner heard were based upon a new policy adopted by Respondent on August 6, 2001 ("the Policy"). The Policy was adopted by Respondent as a direct result of a series of administrative fines it received from the Florida Department of Labor and Employment Security for violations of the Child Labor Law. The violations included minors working more hours per day and/or per week than permitted, minors working in and around hazardous occupations (e.g., cooking with hot grease), and not providing minor employees with the required 30-minute breaks. The Policy was distributed to Respondent's district managers and area managers. Those managers were responsible for distributing the Policy to the store managers who, in turn, were responsible for implementing the policy and conveying the information in the Policy to the "front line" employees, such as Petitioner. Petitioner did not receive a copy of the Policy until after she had been fired. However, Petitioner was informed of the essential substance of the Policy through the "rumors" described above. The Policy states that "[i]t has long been [Respondent's] policy not to hire minors" who are not exempt under the Child Labor Law. The Policy required all minor employees to be "phased out" by December 1, 2001. The purpose of the four-month phase-out period was to enable the employees to find other employment. The Policy did not apply to minors who could provide documentation to Respondent showing that they were legally married, had their disability of non-age removed by a court of competent jurisdiction, were serving or had served in the Armed Forces, and/or have graduated from high school or earned a high school equivalency diploma. These criteria were taken directly from Section 450.012(3), Florida Statutes, which identifies those minors who are not subject to the state's Child Labor Law. Petitioner did not fall within any of these categories. Consistent with the phase-out schedule in the Policy, Petitioner's employment with Respondent was terminated effective December 1, 2001, although her last work day was actually in late November. Petitioner was 17 years old at the time. Petitioner did not look for other employment after she was fired by Respondent. Petitioner attended some type of summer program at Bethune-Cookman College (BCC) in Daytona Beach, Florida, between June 16 and July 27, 2002. Petitioner received an $800.00 stipend from BCC related to that program. Petitioner enrolled in Barry University (Barry) in Miami Shores, Florida, in August 2002. Had she still been employed at Popeye's at the time, she would have quit since she had always planned to attend college after high school and not to have a career working at Popeye's. Had Petitioner continued to work at Popeye's from December 1, 2001, until June 16, 2002, when she started the summer program at BCC in Daytona Beach, she would have earned $2,354.63.3 Had Petitioner been able to continue working at Popeye's while she was attending the BCC summer program and all of the way through mid-August 2002 when she left for college at Barry, she would have earned an additional $756.84,4 for a total of $3,111.47. The additional $756.84 that Petitioner would have earned by working at Popeye's from June 16, 2002, through August 2002, is less than the $800.00 stipend that she received from BCC. Petitioner obtained a part-time job through a federal work study program once she enrolled at Barry. She worked in that program from August 2002 to May 2003 when the school year ended. She was paid $5.50 per hour, and she earned approximately $2,250.00 in that program. In May 2003, Petitioner returned to Sanford for "summer vacation." Upon her return, Petitioner began looking for a summer job in Sanford, but as of the date of the hearing, she was not employed. The record does not reflect what type of job that Petitioner was looking for or whether she actually applied for any jobs. Petitioner will continue in the work study program when she returns to Barry in August 2003. But for the Policy, Petitioner would have not been terminated in December 2001. She was a good, hard-working employee and she had no disciplinary problems. Respondent is willing to rehire Petitioner now that she is 18. Petitioner is not interested in working for Respondent. She testified at the hearing that she does not want to go back to work for "a company that has done me like that," which is a reference to Respondent firing her based solely upon her age. There is no evidence that Petitioner was mistreated in any way or subjected to a hostile work environment while she was working at Popeye's, nor is there any evidence that such an environment currently exists or ever existed at Popeye's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order which dismisses Petitioner's unlawful employment practice claim against Respondent. DONE AND ENTERED this 15th day of August, 2003, 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 15th day of August, 2003.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Ms. Jones is a person of the African-American race. She worked in Pensacola, Florida, for Attorney Walter Steigleman, who was a contract provider for the Department's Child Support Enforcement (CSE) program. In the Spring of 2007, the Department terminated its contract with Mr. Steigleman and set up its own Child Support Enforcement Program. This program was referred to as the Legal Services Unit (LSU). Thereafter, the Department employed Ms. Jones pursuant to a contract executed June 25, 2007. The Department viewed this new LSU as a "pilot" project and, accordingly, did not wish to establish full-time equivalents pursuant to the state employment system. Therefore, the contract entered into with Ms. Jones was an "at will" employment contract and provided that she could be terminated upon two weeks' notice. Because Petitioner was not a statutory state employee, she had no right to appeal any termination or layoff. Staff hired for the project included Katherine Wright, an African-American attorney; Shayna Marstellar, a Caucasian attorney; Andrew Wood, a Caucasian attorney; Ms. Jones, a legal assistant; Megan McClinnis, a Caucasian legal assistant; Ruth Taylor, a Caucasian legal assistant; Marquieta Howard, a Caucasian legal assistant; Janet Thornhill, a Caucasian legal assistant; and Jacqueline McBride, an African-American senior clerk. Ms. Rhonda O'Kelley was the Regional Manager in overall charge of the Department's operations in the area. Priscilla Phipps, a Revenue Administrator III and veteran of 22 years with the Department, was in charge of the LSU. Ms. Phipps understands that it is in the Department's interest to make accommodations for employees in order to retain them. She has adjusted the hours of employees many times in her career and at some point put Ms. Jones on a flex schedule at Ms. Jones' request. Ms. Jones compared herself with Megan McClinnis. Ms. McClinnis had a young child and was allowed absences so long as she subsequently made up the missed time. Ms. McClinnis often called in late, but was allowed to make up for missed work. Ms. McClinnis was provided cross-training and Ms. Jones was not. However, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones. Ms. McClinnis on occasion had quality of work issues. Ms. Jones was paid $17.00 per hour, and Ms. McClinnis was paid $15.00 per hour. Each LSU team member had specialized duties. Ms. Jones and Ms. McClinnis prepared dockets for court and prepared pleadings, and Ms. Jones often attended court proceedings. Ms. Howard prepared petitions. Ms. McBride put the files in order, prepared notices, and acted as a courier. Ms. Taylor worked on judges' cases. Ms. McClinnis was provided cross-training in these activities, and Ms. Jones was not. However, as previously stated, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones and other members of the team. In any event, there was no testimony that cross-training was a benefit. PAILS is an acronym for a CSE, computer-based, tracking system. Both Ms. Jones and Ms. McClinnis were trained to use this system, and both could use it, but Ms. McClinnis, according to Ms. Phipps, was faster. Consequently, Ms. Phipps directed Ms. McClinnis, rather than Ms. Jones, to use the machine. There is no benefit to using the PAILS program. By August 2007, Ms. O'Kelley concluded that there were performance problems with the LSU. In order to improve the operation, she made personnel reassignments. Among other moves, she discontinued the practice of having Ms. Jones attend court. She assigned additional people to work on dockets. In September 2007, Ms. Phipps held a meeting with personnel involved with CSE. At the meeting were four African-Americans (Ms. Jones was one of them), one Hispanic, and the remainder were Caucasian. During the meeting there was a discussion regarding the timeliness of the cases set on the docket and the number of cases required to be re-set. During this discussion, Ms. Jones stood up and loudly protested some of the remarks made by certain attendees. This outburst startled some of the attendees and some thought it unlike Ms. Jones to engage in such behavior. Nothing occurring during the meeting was connected in any way to race. Subsequent to the meeting, Ms. Phipps remarked that she was surprised Ms. Jones had acted in an unprofessional manner. The mother of Ms. McClinnis worked for the Department for many years, and was working there when her daughter was employed. Although witnesses denied Ms. McClinnis received special treatment, it was clear that everyone in the office was aware of the relationship, and the relationship had some effect on Ms. McClinnis' privileges. For instance, Ms. McClinnis ignored call-in procedures with impunity. Ms. Jones told Ms. Walker and Ms. O'Kelley that she believed Ms. McClinnis was benefiting from nepotism. Ms. O'Kelley discussed the complaint with regard to nepotism with Ms. Phipps. Ms. Jones never, during the entire term of her employment, made any claim of disparate treatment based on race. The procedure for handling complaints of racial discrimination is to report the complaint to the inspector general. Ms. O'Kelley and Ms. Phipps made no report to the inspector general with regard to complaints by Ms. Jones because her complaints with regard to favoritism did not involve race. Ms. Jones reported to work on time and was present when she was supposed to be present. Her co-workers believed her to be a good worker. However, Ms. Jones and almost all of the workers in the LSU had quality of work issues. All of them had work returned from the attorneys for corrections. When Ms. McClinnis was counseled with regard to errors, she accepted the correction in good faith. When Ms. Jones was counseled with regard to errors, she became defensive. The Department was generally displeased with the staff of the LSU. Ms. Bradford (African-American) was terminated in accordance with the provisions of her contract in March 2008. During May and June 2008, contract employees Wright (African- American), Ms. Wood (Caucasian), Ms. Marsteller (Caucasian), Ms. Taylor (Caucasian), Ms. McClinnis (Caucasian), and Ms. Jones (African-American), were terminated. Ms. Howard (Caucasian) and Ms. McBride (African-American) were retained. Disparate treatment by anyone involved with Ms. Jones because of race did not occur. The evidence of record reveals no evidence of any racial bias by anyone.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations Dismiss the Petition for Relief filed by Mary Lynn Jones. DONE AND ENTERED this 25th day of February, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cindy Horne, Esquire Department of Revenue Carlton Building, Room 304 501 South Calhoun Street Tallahassee, Florida 32399 Robert Framingham Department of Revenue Post Office Box 10410 Tallahassee, Florida 32302 Mary Lynn Jones 6501 Robar Tesora Street Navarre, Florida 32566 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about July 1, 1995, on the basis of her race (white), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995. Petitioner is a white female and a licensed CNA. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure. Vermette hired Petitioner as a CNA on April 18, 1995. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station. Petitioner told Donahue that Samuels had thrown her around the room. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is enough of this.” Donahue told Petitioner to leave the room and wait in the employee break room. Donahue reported this incident to her superior, Vermette. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome. During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Jayne E. Griffith, pro se 2018 Gairloch Street Orlando, Florida 32817 Deborah Gibson, Esquire Jackson Lewis 390 North Orange Avenue Suite 1285 Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
