The Issue Whether the Respondent intentionally committed an unlawful employment practice against the Petitioner on the basis on her national origin/Hispanic (Puerto Rican) or gender/female (sexual harassment). Whether Petitioner, a member of a protected class, was removed from her position with the Respondent in retaliation for her filing of a sexual harassment complaint with the Florida Commission on Human Relations on March 12, 1992.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. Respondent, Martin-Marietta Electronics Information and Missiles Group, is a foreign corporation licensed to do business in Florida which employs more than fifteen employees. Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner, Margarita Coll, is a female, hispanic, citizen of the United States who resides in the State of Florida. Petitioner is a member of a protected class. Petitioner was an employee of Hi-Tec Associates, Inc., during all relevant periods, and was a de facto employee of Respondent for approximately four and one-half years. Petitioner was employed at Respondent company through a temporary agency called Associated Temporary Services and placed with the Respondent on January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet Administration Department off Sand Lake Road, Orlando, Florida. Her responsibilities included record keeping, filing and helping Respondent's employees with company vehicles. Petitioner reported to the Respondent's Fleet Manager, Linda Reilly. Her day to day work assignments and supervision were received exclusively from the Fleet Manager. Petitioner worked in her position at the pleasure of the Respondent. She was assigned a "buyer" at Martin- Marietta who worked with the requesting department to fashion a position to meet the department's needs. The work was bidded out and awarded to the temporary employment agency who best met Respondent's criteria, on an annual basis. Over time, Petitioner assumed additional job responsibilities and in June, 1988 received a commendation for exceptional performance from Respondent's supervisors. In an effort to reward her efforts, Reilly successfully upgraded her position, first to Administrative Assistant and then to Fleet Analyst. When she was reclassified as a Fleet Analyst, the contract for her position was awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not provide technical employees under their contract with Respondent. Petitioner always worked at Martin-Marietta as a temporary employee and was never employed as a regular employee of the company. As such, she had no company benefits; she was classified as a contract laborer and her services were purchased by purchase order. Petitioner completed no company employment application, was not subject to Martin-Marietta performance appraisals and had no Martin-Marietta employment records or personnel file, other than her contract labor time slips. Petitioner received her pay from Hi-Tec. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration Department as a Fleet Administrative Assistant by a temporary employment agency. Friction quickly developed between Petitioner and Quinonez. Petitioner believed that Quinonez was hired to assist her and became upset when she would not follow Petitioner's supervision or directions. Quinonez understood that she was to report to the Fleet Manager, and objected to the way Petitioner treated her. On November 15, 1990, Reilly was laid off by Respondent as part of a reduction in force and was replaced by Joseph LaPak. LaPak observed the bickering between Petitioner and Quinonez and that it continued to escalate over time. In December, 1990, the temporary positions in the department were reevaluated and the contract requirements for both positions were rewritten. The titles of both Petitioner and Quinonez were changed to that of Fleet Administrative Assistant. Any language in the contract which called for Petitioner to direct the clerical duties of the department were eliminated. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to clarify her reporting responsibilities. It was confirmed that Quinonez and Petitioner were to report to the Fleet Manager, and that Petitioner did not have supervisory authority over Quinonez. Nevertheless, disputes between Petitioner and Quinonez continued. Attempts by management to resolve the problems were unsuccessful. On February 17, 1992, during the normal lunch hour, an altercation occurred between Petitioner and Quinonez. When Quinonez returned from lunch, she found Petitioner at her computer terminal. Quinonez asked for it back. Petitioner refused and an argument ensued. The two women became so angry and loud that a neighboring supervisor had to come over and separate them. Wally DuBose sent both Petitioner and Quinonez home for the day. Petitioner's immediate supervisor, LaPak was not in the office at the time. DuBose then discussed the matter with his supervisor, Paul Smilgen, and it was decided that Petitioner would be removed from the contract for her failure to work with fellow employees and management, and for general insubordination. LaPak was not involved in the decision to remove Petitioner. The decision was communicated to Hi-Tec. They, in turn, notified Petitioner that same evening that she was being replaced on the contract and not return to the Fleet Administration Department. Hi-Tec offered to attempt to place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the openings available at the time paid less that the Fleet Administrative Assistant position. When LaPak first became the Fleet Manager in November of 1990, Petitioner and Quinonez worked in a very small work space. While Petitioner was training LaPak and working on the computer, LaPak's body was frequently close to Petitioner's and she felt pinned in a corner by him. After the initial working relationship was established and LaPak came into Petitioner's work area, he would touch her on her arms or shoulder in order to get her attention. In December, 1990, Petitioner complained to DuBose about LaPak touching her and making her uncomfortable. Both Petitioner and DuBose talked to LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak honored that request and did not touch her again. He made every reasonable effort to get her attention when he needed to talk to her without touching her. In October, 1991, Petitioner complained to the Martin-Marietta EEO office that LaPak was sexually harassing her by inappropriate touching. Respondent then conducted an immediate investigation into the allegations and attempted to resolve the matter through internal mediation. Petitioner's testimony and other witnesses' testimony concerning sexual comments, innuendoes or propositions and inappropriate touching allegedly made by LaPak that occurred between December, 1990 and October, 1991 were inconsistent and are not credible. Petitioner presented no relevant or material evidence to show that Petitioner was the victim of national origin discrimination. Respondent's articulated reason for its decision to remove Petitioner from her contract labor position was not based on gender discrimination or national origin discrimination, nor was it pretextual. Petitioner failed to prove that her termination of employment at the Respondent's company was in retaliation for her complaints of sexual harassment or national origin discrimination.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued in which the Charge of Discrimination is DENIED and the Petition for Relief is DISMISSED. DONE AND ENTERED this 26th day of April, 1994, 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 26th day of April, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire), 15(in part), 16(in part), 18(except as to the date of the counseling session), 19(except as to the date of the counseling session), 20, 21(in part). Rejected as against the greater weight of evidence: paragraphs 5(in part: Petitioner was first a contract employee with Associated Temporary Services), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in part), 17. Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in part). Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7, 11(in part), 12, 13, 14(in part). Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16, 17. Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8, 11(in part), 14(in part). Rejected as against the greater weight of evidence: paragraph 6(in part). COPIES FURNISHED: Kay L. Wolf, Esquire John M. Finnigan, Esquire GARWOOD, MCKENNA & MCKENNA, P.A. 815 North Garland Avenue Orlando, Florida 32801 James Sweeting, III, Esquire 2111 East Michigan Street Suite 100 Orlando, Florida 32806 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in the case is whether the Petitioner was harassed on the basis of national origin or discriminated against on the basis of a disability.
Findings Of Fact The Petitioner began employment with the Respondent in the summer of 1994 and was terminated from his employment on July 28, 1999. The Respondent operates a machine shop where different types of large metal parts are fabricated according to customer order. The Petitioner was employed as a "mill operator" in the "caterpillar" department. As a mill operator, the Petitioner was required to load metal parts into machines for further processing, check the quality of his work, and return the parts to a container of finished parts. At all times material to this case, the Respondent had a policy prohibiting employee harassment on the basis of numerous grounds including "national origin." The policy provided that any employee who believed that such harassment was occurring should report it immediately to a supervisor or to another company official. The non-harassment policy was included in the employee handbook. The Petitioner received the handbook when the Respondent employed him and was aware of the policy. The Petitioner, of Polish origin, asserted that at various times he was harassed on the basis of national origin; specifically, he was sometimes addressed as "pollock" by some co-workers. Although the evidence establishes that employees, perhaps including the Petitioner, occasionally referred to each other by ethnic slurs (i.e., "pollock," "speedy Gonzalez," and "buddha") the testimony regarding such incidents was anecdotal, and the times and dates of such references are uncertain. The evidence fails to establish that the Petitioner was subjected to a hostile work environment or was harassed on the basis of national origin. Other than as set forth herein, the evidence fails to establish that the Petitioner or any other employee ever advised a supervisor or a manager that co-workers were making ethnic references or that any employee felt harassed by the behavior. In March 1998, a note was taped to the men's restroom door reading "Polish Department – Jerry's [sic] Office." The Petitioner reported the note to his supervisor. A meeting was held with the Petitioner's co-workers on March 16, 1998, where the Respondent's managers advised the employees that such behavior was not acceptable and that similar events in the future would result in disciplinary action against the perpetrators. The Petitioner also asserts that he was discriminated against on the basis of an alleged disability. In December 1998, the Petitioner had a total replacement of his right hip. He was medically cleared to return to work on March 1, 1999, with restrictions of not working more than 10 hours per day for two weeks and not lifting more than 20 pounds. The Petitioner reported for work on March 4, 1999, but was sent home by his supervisor because there was no work that met his restrictions, particularly the weight restriction. Generally the metal parts involved in the Respondent's manufacturing process weighed in excess of 20 pounds. By March 18, 1999, the restrictions were lifted and the Petitioner returned to work without incident until July 1999. On July 6, 1999, the Petitioner received a written warning from a plant supervisor who determined that the Petitioner was not properly inspecting parts being produced in the Petitioner's machine. An excessive number of parts were not within acceptable fabrication tolerances and had to be "re- worked." The warning specifically provided that failure to improve the quality and inspection of parts would result in termination of employment. On July 27, 1999, the Petitioner reported hip pain to his physician and was again placed on a restricted workload that included no lifting of weight in excess of 20 pounds and no "twisting" until the physician determined that the pain had been resolved. Based on the medical restrictions and his experience, the Respondent was unable to locate work suitable for the Petitioner. The Petitioner's employment was terminated because there were no jobs available that complied with the Petitioner's medical restrictions. Review of the Petitioner's performance evaluations establishes that he was generally an average worker who was sometimes warned about becoming too involved in other employees' activities. His evaluations of August 1996 and September 1998 contained references to such involvement and indicated that he should "spend less time worrying" about other employees. The 1996, 1997, and 1998 performance evaluations suggested that the Petitioner obtain additional training in order to advance his career. The Respondent offered a program to fund such training, and notices regarding the training were posted on a bulletin board accessible to employees, but the Petitioner did not take advantage of the program. At the time of the July 1999 medical restrictions, the Petitioner's skill set did not qualify him to perform tasks other than as a mill operator using the machine for which he was originally employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed by Jerzy Josefik in this case. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jerzy Jozefik 9605 Southwest 27th Avenue Ocala, Florida 34476 Grant D. Petersen, Esquire Ignacio J. Garcia, Esquire Haynsworth Baldwin Johnson & Greaves LLC 600 North Westshore Boulevard, Suite 200 Tampa, Florida 33609-1117 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner was sexually harassed and constructively discharged contrary to section 760.10, Florida Statutes (2013), and if so, what remedy should be ordered.
Findings Of Fact Evidence Adduced at the Final Hearing HPC was a rehabilitation and long-term care facility with 180 beds.1/ Petitioner is a female who was employed at HCP as a certified nursing assistant (“CNA”). Petitioner was working at HCP during the evening of Friday, March 21, 2014. She had finished assisting with the transfer of residents from the dining area and was standing at a nurses’ station. Three other HCP employees (Derrick Hahn, Atrice Jones, and Erica Russell) were engaged in a conversation about seven feet from Petitioner. Mr. Hahn was a nurse supervisor. While he was in a position in which he could have supervised Petitioner, there was no testimony that he ever did so. Petitioner was standing with her back against a computer, and she was not participating in the conversation. Mr. Hahn turned to leave Ms. Jones and Ms. Russell. As he was doing so, he collided with Petitioner, and his chest made contact with her chest. At the final hearing, Mr. Hahn and Ms. Jones testified that the collision resulted from Mr. Hahn tripping over a wheelchair and losing his balance. Petitioner testified that there was no wheelchair, thus implying that Mr. Hahn intentionally collided with her. An unidentified person who witnessed the collision immediately asked aloud if Mr. Hahn was trying to run over the CNAs. Mr. Hahn replied by stating that the collision was a “love bug” or a “love bump” and walked away. Petitioner was disturbed by this incident went outside to compose herself. At some point, Petitioner continued with her duties. However, after 15 to 20 minutes, she decided to report the incident to her direct supervisor, Carrie Harper. Ms. Harper immediately called HCP’s facility supervisor, Tonya McAteer. After Petitioner described the incident to her, Ms. McAteer called the Director of Nursing, Holly Henry. Mr. Hahn did not return to work until Monday, March 24, 2014. When he did so, Ms. Henry and Joseph Ballay (the lead administrator of HCP) met with him to discuss the incident. Mr. Hahn told them that he had tripped over a wheelchair and that the collision with Petitioner was accidental. Mr. Ballay and Ms. Henry also met with Petitioner on March 24, 2014. Petitioner reported to them that Mr. Hahn intentionally collided with her. Mr. Ballay told Petitioner that an investigation would be initiated and that Petitioner would not be required to have any additional contact with Mr. Hahn. In order to maintain separation between Mr. Hahn and Petitioner, Ms. McAteer assumed full responsibility for supervising Petitioner. During their investigation, Mr. Ballay and Ms. Henry talked to Atrice Jones, one of the nurses who were present when the incident occurred. Ms. Jones stated that the incident was accidental and that Mr. Hahn was embarrassed that he had collided with Petitioner. Mr. Ballay and Ms. Henry also conferred with other HCP employees but found no evidence that this incident was part of a continuing pattern of inappropriate conduct by Mr. Hahn. Mr. Ballay and Ms. Henry completed their investigation by Friday, March 28, 2014, and concluded that Mr. Hahn unintentionally collided with Petitioner. At the conclusion of their investigation, Mr. Ballay and Ms. Henry admonished Mr. Hahn for describing the incident as a “love bug” or “love bump” after a bystander asked him if he was trying to run over the CNAs. Mr. Ballay and Ms. Henry also advised Mr. Hahn that an apology to Petitioner immediately after the incident would have been appropriate. Mr. Ballay and Ms. Henry spoke to Petitioner about the outcome of their investigation, but Petitioner did not agree with their conclusion. Over the next three months, there were no further incidents between Petitioner and Mr. Hahn. During her testimony, Petitioner cited no other instances of alleged misconduct by co-workers or supervisors. Petitioner’s employment with HCP ended in late July or early August of 2014. Petitioner testified that she voluntarily separated from HCP after concluding she could no longer work for an organization that did not care about her feelings. In contrast, Mr. Ballay testified that Petitioner was dismissed after she failed to report to work on July 30 and July 31, 2014. During the final hearing, the testimony differed as to what HCP’s management did immediately after the incident. Petitioner testified that three weeks passed before HCP’s management initiated its investigation. In contrast, Mr. Ballay testified that he and Ms. Henry completed their investigation within one week following the incident. As a matter of ultimate fact, the undersigned finds that the greater weight of the evidence demonstrates that Mr. Ballay and Ms. Henry completed their investigation by Friday, March 28, 2014. As noted above, the testimony also differed as to whether Mr. Hahn tripped over a wheelchair prior to colliding with Petitioner. In light of what Mr. Hahn said immediately after he collided with Petitioner and his failure to apologize, it is not surprising that Petitioner concluded that Mr. Hahn intentionally collided with her. However, even if Petitioner’s recollection were to be found more credible than that of the other witnesses, Petitioner’s allegations do not demonstrate that she was subjected to a hostile work environment or that she was constructively discharged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s claim for relief. DONE AND ENTERED this 24th day of February, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2016.
The Issue Whether Petitioner, Craig Tapper, was subjected to a hostile work environment as a result of his race and national origin and retaliation, as alleged in his Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, an black male, born in Jamaica, was employed by Respondent as a department head/stock clerk and is classified as an "associate." He started his employment with Respondent in June 2006 and was "resigned"1 on December 5, 2007. Respondent owns and operates retail grocery stores in Florida. Respondent employs more than 15 people. Respondent provided an Associate Handbook ("Handbook") to Petitioner when he was employed. The Handbook contains a "Policy Statement on Harassment, Including Sexual Harassment" ("Harassment Policy") and information regarding a Formal Complaint Procedure. The pertinent portion of the policy states: Policy Statement on Harassment, Including Sexual Harassment: We at Publix Super Markets share the belief that each of us should be able to work in an environment free of discrimination and any form of harassment, including harassment based on race, color . . . national origin. . . Harassment based on any of these factors will not be tolerated. . . [I]n order for the Company to deal with the problem [of discrimination/harassment], offensive conduct or situations must be reported to the correct person. If you work in a store and want Publix to address your concern, you must report it to your Store Manager, District Manager, or Associate Relations Specialist. . . Formal complaints may also be lodged with the Manager of Equal Employment Opportunity (MEEO) through the Formal Complaint Procedure. If you choose to use these complaint resolution procedures, you'll be treated courteously. Your complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem. Registering the complaint will in no way be used against you, nor will it have adverse effect on your employment. . . . Furthermore, Publix' "Rules of Unacceptable Conduct" prohibit the use of derogatory racial slurs and profanity. The "Rules of Unacceptable Conduct" are posted in the break room and the training room. The Attendance and Punctuality Policy" states, "[a]ssociates who miss 2 entire shifts without calling will be terminated." Associates are required to personally call in and speak with a manager two hours before their scheduled shift if they plan to miss work. On January 29, 2007, Petitioner was scheduled to work, but did not call or show up. As a result, Petitioner was suspended for a week and received a written "Associate Counseling Statement" ("Counseling Statement"), which instructed that he "must call himself when he is not going to be here" and that he "must call in for all shift [sic] he can not fulfill." He was further warned that a failure to improve would result in his discharge. On February 19, 2007, Petitioner was counseled and suspended for one week for "his 6th absent [sic] this 6 month period." Despite this warning, on May 20, 2007, Petitioner was again a "no call-no show." Petitioner was issued a Counseling Statement for failing to call in and speak with a manager before missing his scheduled shift. Petitioner was warned again that he "must call in 2 hours prior to his shift, call in personally and speak to a manager." This Counseling Statement contains the following admonition: "The next occurrence of not following proper procedures will result in a one week suspension. The next occurrence of a no show/no call will result in termination." On August 28, 2007, Dennis Sacca, grocery manager, overheard Petitioner say, "I am tired of being treated like a nigger." Sacca later walked up to Kendall Brown, an African- American grocery clerk, and said, "Go tell the nigger that I sent him some help." Brown relayed the message to Petitioner. Petitioner reported the incident to Ron Brassel, a former store manager and who is African-American, and an investigation was immediately conducted. Brassel informed the district manager who also participated in the investigation. During the investigation, Petitioner wrote a statement for Brassel in which he stated "[a]s far as the incident [sic] myself and Dennis sat down and spoke about the statement he made [and] we both worked it out. I would like very much for this to go no further than it being documented, I don't want Dennis fired, transferred, demoted or any action being taken against him on my behalf. As I said we both worked it out, he made a mistake and he already said he was sorry for saying it; I forgave him and we [sic] back to business." (Emphasis in original). Despite Petitioner's written statement requesting that Sacca not be disciplined, on September 26, 2007, Dwayne Bryant, district manager, suspended Sacca for one week. Bryant also reviewed Publix' Harassment Policy with Sacca and issued Sacca a written Counseling Statement warning Sacca that the next violation of Publix' Harassment Policy would "result in further disciplinary action such as removal from management or termination . . ." Petitioner never heard Sacca use the word "nigger" again. Petitioner was also given a Counseling Statement for using the word "nigger." In the "Associate Comments" section of the Counseling Statement, which is where the associate has the opportunity to note their disagreement with the counseling, there is no statement denying that Petitioner used the word "nigger." Several employees, including other African-American associates, have heard Petitioner use the word "nigger" on various occasions. Rentia Dawsey was employed at the same store as an assistant customer service manager. Dawsey, who is African-American, heard Petitioner used the word "nigger" at the store frequently. She specifically remembered an incident where she asked an associate to check with the store manager before she marked anything down, and Petitioner said, "[w]hat, you don't trust the nigger?" Brown, who worked with Petitioner, heard Petitioner say in the back room, "nigger, what's up" or "nigger this." Ron Calkins, grocery manager and Petitioner's direct supervisor, remembers overhearing Petitioner in the cooler saying, "he was nothing but the store nigger." Calkins verbally counseled Petitioner warning him that he could not use that language as it may be offensive to customers who overhear him. Petitioner claims that after Sacca was suspended, Calkins and Bowles, another employee, began harassing him, because they were unhappy with what had happened to Sacca. Petitioner failed to utilize the established complaint procedures regarding this alleged harassment. No other employee confirms these allegations; in fact, they testified that they never heard Bowles or Calkins say anything derogatory toward Petitioner or behave any differently toward him after the incident with Sacca. Petitioner's allegation of the harassment by Calkins and Bowles is not deemed credible. There is no credible evidence of discrimination based on national origin. In October of 2007, Kris Kolczynski became the new store manager. On Friday, November 30, 2007, Petitioner was detained and taken to the Orange County Jail for matters unrelated to his employment. On the morning of December 2, 2007, Kolczynski was notified by another employee that Petitioner did not show up for work, because he was in jail. Later that day, a woman, apparently Petitioner's girlfriend, came to the store and informed Kolczynski that Petitioner would not be coming in. Petitioner failed to call in and was absent again for his scheduled shift on December 3, 2007. Accordingly, Kolczynski called Tammie Taylor in Human Resources that same day to explain that Petitioner had been a "no call-no show." Taylor is a regional retail associate relations specialist who provides employment advice to management employees. Taylor informed Kolczynski that the standard practice within is that if an employee does not come to work for three consecutive days, they are "resigned." Accordingly, Taylor advised Kolczynski that if Petitioner did not show for a third consecutive shift "to resign him" for job abandonment. Taylor advised Kolczynski to resign Petitioner, rather than terminate him so that Petitioner would be eligible for rehire at other Publix stores. Associates, who are terminated, are not eligible for rehire at Publix for a year. On December 4, 2007, Petitioner was scheduled to begin work at 7:00 a.m.; however, he did not call in until 11:00 a.m., four hours after his scheduled shift. This was a "no call-no show" according to Publix' policy, which requires associates to call in two hours before their scheduled shift. Because Petitioner was a "no call-no show" for three consecutive days, Kolczynski followed Taylor's recommendation and "resigned" Petitioner's employment. Petitioner claims that he attempted to call Publix twice from the jail, but the store would not accept collect calls. Contrary to Petitioner's allegations, there is no written or even unwritten policy prohibiting accepting collect calls. When Petitioner contacted Kolczynski, he was informed that his services were no longer needed at Publix and that he was considered "resigned" because he failed to call in and personally inform a manager that he would miss his scheduled shifts. Subsequently, Petitioner contacted Taylor. Taylor informed Petitioner again that he was "resigned" for failing to call in or show up for work for three consecutive days. Kolczynski received calls from about two or three Publix store managers regarding whether Petitioner was "rehirable." Kolczynski informed them that Petitioner was resigned for job abandonment for failing to show up to work for three consecutive days, but that he was eligible for rehire. Kolczynski did not mention anything about the Sacca incident, and he did not tell them not to hire Petitioner.
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 15th day of December, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 15th day of December, 2008.
The Issue The issue is whether Petitioner has been the subject of an unlawful employment practice pursuant to Chapter 760, Florida Statutes.
Findings Of Fact Respondent is a municipal corporation under the laws of the State of Florida. It provides many public services to its citizens, including the provision of beautification on city rights-of-way and parks. The City's Public Works Department operates the Crestview Beautification Crew (CBC) that provides maintenance for public areas. Mr. McLaughlin is an African-American. He applied for a position as an equipment operator with the CBC in May 2007. The Assistant Director of Public Works, Wayne Steele, a Caucasian man, interviewed Mr. McLaughlin. Mr. Steele also made inquiry and learned that Mr. McLaughlin had some negative experiences with his driver's license. Mr. Steele also learned that Mr. McLaughlin had attendance and attitude problems at his previous place of employment. Mr. Steele believed that Mr. McLaughlin would not be a good hire and recommended that he not be employed. Despite the recommendation, General Cox, a Caucasian man and the City of Crestview Director of Public Works, decided to hire Mr. McLaughlin. Mr. Cox believed Mr. McLaughlin should be given a second chance. Mr. McLaughlin commenced employment with the City's CBC on June 20, 2007. He was initially hired on a probationary basis for 90 days just like all City employees. During the probationary period an employee's supervisor is given the opportunity to observe his or her performance. If the performance is deficient, the supervisor may terminate the employee. An employee terminated during a probationary period has no right to contest the action at a hearing. Mr. McLaughlin was provided a copy of the City's personnel manual and signed a statement affirming that he understood the conditions of his probationary employment. Because of his history of attendance problems at his previous job, Mr. McLaughlin was expressly advised by Mr. Vance, his supervisor, that tardiness would not be tolerated. Mr. McLaughlin was hired as an equipment operator and as such mowed grass, operated a weed eater, and engaged in basic landscaping tasks. At daily meetings held at 7:00 a.m., crew assignments in the CBC are made. It is important for all CBC members to be present at these meetings so that everyone is aware of their daily mission. Attendance is critical during these meetings. If employees are absent the daily routine is disrupted and substitutions must be made. Mr. McLaughlin was tardy on a number of occasions. This tardiness amounted to simply arriving a few minutes late for the crew meeting. On at least two occasions, he called in saying that he could not attend work as scheduled. Mr. McLaughlin also had problems performing his duties. He was rough on his assigned equipment which resulted in a damaged mower deck, broken belts, and broken wheels. The damage occurred because he mowed over objects and struck objects with his mower that he should have bypassed. Mr. McLaughlin presented no evidence that another similarly situated person of a different race was treated differently from him. The only asserted evidence of discrimination came from his conversations with a co-equal worker and friend, and the language they used with one another indicated that any racial slurs made, if they were in fact made, were made as permissible jests. Mr. McLaughlin never complained of racial bias to his superiors. A crew leader with whom he worked, Kenneth Martin, an African-American, stated that he never heard any racial remarks made in the presence of Mr. McLaughlin and noted that Mr. McLaughlin never complained to him about any real or imagined discrimination. All supervisors in Mr. McLaughlin's chain of command agreed with the decision to terminate him on August 8, 2008. The decision was made because of Mr. McLaughlin's pattern of tardiness and because of his poor performance while operating the equipment. The record is void of any evidence of racial discrimination against Mr. McLaughlin by any employee of the City.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Patrick McLaughlin. DONE AND ENTERED this 4th day of March, 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 4th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason Eric Vail, Esquire Allen, Norton & Blue 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Patrick McLaughlin 748 Amos Street Crestview, Florida 32539 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
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 Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, 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 26th day of March, 2008.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2004.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 16, 2001.
Findings Of Fact Petitioner was employed by Respondent, Toucan's Restaurant, as a cocktail waitress. The record is unclear as to when she began her employment there. Her last day on the job was March 18, 2000. The record is not entirely clear as to the exact legal entity that owned Toucan's Restaurant (the restaurant). However, Mary Ann Pistilli was an apparent officer of the corporation which owned the restaurant and acted in the capacity of manager. There is no evidence in the record showing that Mary Ann Pistilli's husband, Craig Pistilli, was an owner or manager of the restaurant. However, he was sometimes at the restaurant. The extent or frequency of his presence at the restaurant is also unclear. According to Rene Brewer, a bartender at the restaurant, Mr. Pistilli "wasn't there a lot." While present at the restaurant, Mr. Pistilli would sometimes give direction to employees on certain issues. For example, he directed Ms. Brewer as to the amount of liquor she put in a customer's drink. It was Ms. Brewer's understanding that Mrs. Pistilli knew that Mr. Pistilli would sometimes direct employees regarding such employment tasks. However, Mrs. Pistilli did not testify as to her knowledge of Mr. Pistilli's actions of giving any direction to employees, and, therefore, the extent of her actual knowledge of Mr. Pistilli's actions regarding directing employees on employment matters was not established. On Friday nights, Karaoke entertainment was offered at the restaurant. During a certain song, Petitioner would perform a dance. Petitioner was not asked to perform this dance by her employer and did so voluntarily. Mrs. Pistilli was opposed to Petitioner dancing in this manner. Petitioner would stand on a chair near the Karaoke machine with her back to the patrons, let down her hair, and unbutton her shirt giving the appearance she was undressing. However, she wore a t-shirt under the shirt she unbuttoned. When she turned to face the patrons, it became clear that she wore the t-shirt underneath the shirt she unbuttoned. Then she would dance around the restaurant and its bar area and patrons would give her money for dancing. The money was given to her by both male and female patrons in various ways. For example, when a male patron would put money in the side of his mouth, she would take it with her teeth. Petitioner's dancing was not sexual in nature but was more in the nature of a fun part of the Karaoke. On March 18, 2000, Petitioner was in the bar area of the restaurant. Petitioner's description of what happened is as follows: I was at work, and Craig had come in with one of his friends. It was his friend's birthday. And the bar wasn't very busy at all. I had two customers that just came in. And he was just being loud, and he came over and asked me if I'd get up on the bar and dance, and I told him no. He set me up--at the end of the bar is like a long, and then there's a little like an L, and that part lifts up. The lift-up part was down, and he set me up on top of that. And I told him, you know, to leave me alone. And when I got down, he slapped me on the rear. And then he backed up, he unbuttoned his shirt, he unzipped his pants and said I ought to go in the dining room and dance around like this….Craig's friend was sitting at the bar, and Craig came over and said I got twenty dollars in my pocket, I want you to dance, it's Chris' birthday, and I told him no. And so a few minutes later he came over, he grabbed my arms, he shoved me against-- lifted my arms over my head, shoved me in the corner of the bar. I told him he was hurting me . . . . After the third time of me telling him that he was hurting me, he finally let go and he backed up and he went 00-00-00. And I was very upset. I went into the kitchen, I was crying very hard . . . . While Petitioner's description of what happened contains hearsay statements purportedly made by Mr. Pistilli, Petitioner's testimony describing Mr. Pistilli's actions and her reaction to the incident is deemed to be credible. Petitioner sustained physical injuries as a result of this incident with Mr. Pistilli.2/ Ms. Brewer was behind the bar on Petitioner's last day of employment. She saw Mr. Pistilli come into the restaurant with a friend. Mr. Pistilli appeared to her to be intoxicated. She saw Mr. Pistilli hug Petitioner in front of the bar. She did not see any other contact between Mr. Pistilli and Petitioner on that day. However, she had seen Petitioner hug Mr. Pistilli on other occasions. She also saw Petitioner hug restaurant patrons on other occasions. Teresa Woods was another bartender who worked at the restaurant. On Petitioner's last day of employment, Ms. Woods briefly saw and spoke to Petitioner in the kitchen of the restaurant. Petitioner was upset and told Ms. Woods that her neck and back were hurt. Petitioner then left the building and did not say anything further to Ms. Woods. Petitioner did not return to work. Mrs. Pistilli was not at the restaurant on March 18, 2000. She did not see any of the events that occurred between Petitioner and her husband. She had heard about the allegation that her husband hugged Petitioner but was unaware of the other allegations: Q: When did you first become aware that Mrs. Youngs had filed a workers' compensation claim? A: I can't recall exactly when it was. They did call me. I can't tell you exactly how long a period of time-- Q: Can you give us your best approximation of how close it was in time to--if you assume that the date-- A: A month. A month maybe. I don't know. It was well after. * * * Q: And did the comp carrier tell you the nature of the injury or how Mrs. Youngs contends that it happened? A: Yes, And he came in and I spoke with him, and they said that they'd be back in touch, and never heard from them. Q: And what did they tell you or what was their understanding of what Mrs. Youngs was contending happened after that conversation? A: All I know is my husband hugging her. This stuff I heard today is all new stuff about zippering pants. I never heard of any of that. I never heard any of that. While Mrs. Pistilli was generally aware of an ongoing workers' compensation claim by Petitioner against the restaurant, she was unaware of the most egregious allegations made regarding her husband until well after the fact. While she understood that her husband hugged Petitioner on March 18, 2000, her knowledge of that was gained approximately one month after the fact when finding out about a workers' compensation claim. Moreover, she had knowledge that during Petitioner's period of employment at the restaurant, Petitioner occasionally hugged her husband and some restaurant patrons. No competent evidence was presented that Mrs. Pistilli knew or should have known that Mr. Pistilli engaged in the behavior described by Petitioner that took place on March 18, 2000. Petitioner acknowledged that other than the incident on March 18, 2000, Mr. Pistilli did not make any references to Petitioner about her body during her employment at the restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S __ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on December 8, 2014.
Findings Of Fact Respondent has a corporate policy that prohibits its employees from engaging in acts of discrimination, harassment and retaliation. The policy provides, in part, as follows: Discrimination Resort Travel & XChange prohibits discrimination against its employees, applicants for employment, and customers on the basis of a person’s gender, ethnicity, race, color, creed, religion, sexual orientation, national origin, age, disability, marital status, military service or veteran status or any other classification protected by applicable law. Specifically with regard to its employees and job applicants, Resort Travel & XChange does not tolerate discrimination on the basis of the foregoing characteristics with respect to the terms and conditions of employment. Retaliation Resort Travel & XChange does not tolerate any form of retaliation taken against an employee who, in good faith, makes a complaint of discrimination or harassment under this policy, opposes such discrimination or harassment, or participates in an investigation of alleged discrimination or harassment. Anyone who engages in such retaliatory behavior will be subject to appropriate discipline, up to and including termination. Petitioner was hired by Respondent in March 2014 to work as an “Instructional Design & Delivery Trainer.” The written position description includes the following summary statement: [An] Instructional Design & Delivery Trainer plays an important role in making their companies more competitive by developing the skills of the workforce. They help to accelerate organizational change by developing the skills a company requires if it plans to enter new markets or needs to transform its business performance. Companies with a reputation for developing people also find it easier to recruit and retain high-caliber employees. Among the key competencies are the ability to design and deliver training, manage the learning function, measure and evaluate the results of training, and manage organizational knowledge. According to Pamela Price, Petitioner’s immediate supervisor during his term of employment with Respondent, Petitioner’s “responsibilities would have been to create, design, develop step-by-step institutional training manuals and modules, and perform classroom training of that content to new hires, as well as continuing education courses, [and] [t]o perform analytical assessments of training class participants to see at what level they were learning.” The cornerstone of Petitioner’s gender discrimination claim is his allegation that Ms. Price, on multiple occasions, made statements to Petitioner about a female worker from one of her previous jobs that performed better than Petitioner when assigned similar tasks. Petitioner offered no evidence, other than cryptic self-serving statements and conclusory allegations, which supports his allegation that Ms. Price treated him differently because of his gender. On or about September 19, 2014, Petitioner received from Ms. Price his initial six-month performance evaluation. Respondent’s employee performance evaluation rating scale ranges from “marginal” to “outstanding.” On the initial review, Petitioner received an overall rating of “marginal.” There is no evidence of record that Petitioner suffered a decrease in pay, benefits, or the loss of job-related opportunities as a consequence of having received the marginal performance rating. On or about September 22, 2014, Petitioner sent to Laura Lampkin, Respondent’s director of human resources, his response to the performance evaluation prepared by Ms. Price. In his response, Petitioner states, with respect to Ms. Price, the following: The continued push towards unrealistic deadlines and the refusal to listen or effectively address the needs and concerns expressed creates an unnecessary feeling of duress. Duress is not the inability to handle a fast paced or chaotic environment, as those are environments I thrive within. Duress, as it pertains to this example, is in the feeling to produce regardless of tangible concerns. It is, by nature, the creation of a hostile work environment which should not exist within a professional workplace. Because Petitioner expressed concern about Ms. Price’s behavior creating a “hostile work environment,” Ms. Lampkin, within a day or so of receiving Petitioner’s response, initiated an investigation to determine whether Ms. Price was in violation of Respondent’s anti-discrimination, harassment and retaliation policy. At no time prior to receiving his performance evaluation did Petitioner complain about Ms. Price creating a work environment charged with discriminatory animus. Pursuant to Ms. Lampkin’s investigation, Petitioner, in support of his allegation of the existence of a hostile work environment, informed Ms. Lampkin on September 30, 2014, of the following with respect to Ms. Price: There are a good number of situations which lend themselves to an environment that promotes an air of uncertainty, insecurity – as well as the feeling of being bullied. There is [sic] also interactions and conversations, for example when Pam refers to her co-workers or friends at United Healthcare and how they would be able to perform a function that I push back against or when she fails to consider my professional assessments for training and development, which create concerns of inequality or discriminatory undertones. I have often felt, since July, that there is a determination to replace me with a personal contact from United Healthcare – as it has been referenced repeatedly about this ‘trainer’ and what she is ‘capable of.’ To the degree, where at times, I’m given the impression that I should be as capable as this mysterious person. Perhaps, in Pam’s mind I am too young to be an experienced training professional or maybe she would prefer her previous, female, co-worker. Petitioner failed to offer any evidence, credible or otherwise, that in any way supports his allegation that Ms. Price harbored gender-based discriminatory animus towards Petitioner. At the final hearing, Petitioner cross-examined Ms. Price about myriad subjects, none of which involved issues related to gender bias. Furthermore, in his direct testimony, Petitioner stated, in conclusory terms, that Ms. Price “was discriminatory on the basis of gender because she constantly made references to me about how her other trainer at her other job could do it so much easier and I was making things more complicated than they should be.” Petitioner obviously took offense to Ms. Price’s statements, but contrary to Petitioner’s allegations, these alleged statements attributed to Ms. Price do not demonstrate discriminatory animus, but instead indicate a desire by Ms. Price for Petitioner to improve his level of performance. Petitioner alleges that on October 3, 2014, Ms. Lampkin advised him that she had informed Ms. Price of Petitioner’s claim of discrimination. According to Petitioner, Ms. Price, after learning of Petitioner’s claim, retaliated against him as follows: On October 3, 2014, after I was informed by Laura Lampkin that she had spoken to Pam Price about my claims of discrimination, I received a schedule from Pam Price which included radical changes to my standard operating schedule. I was hired as a salaried employee with a 9am-5:30 p.m. schedule with flexibility in my time and freedom to take breaks and lunch as chosen. In the schedule I received from Pam Price, I was now put into an “agents” schedule, each week working a different shift (morning, afternoon and evening) along with scheduled lunch and break times. In addition, they also moved my office onto the call center floor and set me up in a cubicle with the call center agents. When I complained that the schedule change and relocation of my office to the call center floor was a retaliatory action, the schedule was immediately retracted and I was told to revert back to my standard schedule. However, they kept me on the call center floor which was an uncomfortable position and a distraction to the other agents. I also noticed that the contact I had with other employees both in the Asheville and Orlando office changed during that time. I was no longer treated as a member of management, but now I was being treated as if I was a call center agent. When I expressed this concern to another member of our management team . . . , I was informed that there was an unwritten memo going around the Asheville and Orlando office[s] that I was to be treated as if I was an agent. According to Ms. Price, during Petitioner’s first few months of employment with Respondent, his primary responsibility was “learning” about the company. Petitioner was expected to learn about company “[p]rograms, corporate compliance, policies and procedures, introduction to his teammates, understanding their positions and their roles . . . reading materials [and] having conversations.” Ms. Price, in Petitioner’s performance evaluation, was particularly disapproving of Petitioner as it relates to him failing to take advantage of a critical learning opportunity from a member of Respondent’s staff who was sent to Petitioner’s work-site to conduct a five-week training session. According to Ms. Price, Petitioner spent as little as one to two hours a day attending the training sessions when, in her opinion, more of his time should have been allocated to attending the sessions, especially since he was new to the company. In his September 19 and 22, 2014, responses to his performance evaluation, Petitioner complained that he had “not been afforded reasonable time to learn the processes and workflows contained within the products offered,” and that in order “[t]o be a subject matter expert, which is at the core of my position, I must have the complete and full immersion into the workflows and processes that make up the related products to be able to effectively and authoritatively create training documentation and train[ing] processes.” Respondent granted Petitioner’s request for “complete and full immersion.” On October 3, 2014, Respondent implemented Petitioner’s request for complete and full immersion, which resulted, among other things, in Petitioner being assigned work hours consistent with those assigned to agents in the Orlando call center. Literally within minutes2/ of being fully and completely immersed into Respondent’s workflows and processes, Petitioner, at 2:47 p.m. on October 3, 2014, was already complaining about the immersion program, as reflected in the following e-mail exchanges between Petitioner and Laura Lampkin. Petitioner to Laura Lampkin – October 3, 2014, 2:47 p.m. Laura: While I appreciate the attention to detail given to this project for immersion into the RTX Workflow and while I have explicitly stated ‘agent like immersion’ into those workflows, this is a bit above and beyond that expectation. “In order for you to get the full spectrum of calls and types of calls, I have rotated your schedule from the AM shift, Mid-Shift and Late-shift throughout the two month period of time. In addition to your shift start/stop times, you have regularly scheduled breaks and lunch, based on the particular shift you will work for that week. As an example, for the AM shift, first break is generally at 10:00 am, lunch at 12 noon and then second break at 2:00 and so on for each of the shifts. You will have Monday’s off work on the weeks that you are scheduled to work Saturdays to assist with floor coverage due to the upcoming maintenance fee season. I appreciate your assistance with floor coverage during this busy season.” [from Pamela Price to Petitioner]. There is no reasonable, acceptable, logic to Pam’s statement. The type of calls able to be handled by an RTX Exchange Agent do[es] not change throughout the course of a day or shift. There are only so many call types available and those happen, randomly, with every inbound call – regardless of time of day. Pam did mention scheduling me into the workflows, however, that was not the interpretation I expected. I would like to get this project underway without unnecessary complications. I find the radical change to my schedule a retaliatory maneuver. As the Instructional Design and Delivery Manager, my need to be exposed to the call queue and to gain the practical knowledge to speak to the agent experience does not require the coverage of three shifts, nor does it require a deviation from my normal schedule to accommodate an eight hour workday. Even though I will be using this opportunity as a ‘live learning environment,’ and will hold myself to the highest standards in customer care, while being mindful of queue wait times – I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance. I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology. Could you kindly level set the Pam? At this time and until the current investigation is complete, I feel it may behoove all parties involved to have monitored contact. Thank you much. Laura Lampkin to Petitioner – October 3, 2014, 3:28 p.m. Jason, There actually is a logic to your schedule arrangement, and there is a difference in callers in the AM versus the PM. The AM callers do not contain as many sales opportunities, those are more likely to be basic reservations calls. Call volume is higher in the evening, and opportunities for sales are higher in the evening. The logic behind your rotating schedule arrangement is to give you the fullest exposure possible. Given the criticality of immersion in becoming a Subject Matter Expert, the goal is [to] provide you with the best possible opportunities for exposure. This will help in role playing scenarios and variation, which you expressed were much more difficult to train on without full immersion. If the new schedule is a point of contention, we can rework it. I do want you to understand that there was a great deal of thought put into your immersion plan, all centered around what is most beneficial to you and what bests [sic] affords you the chance to become a Subject Matter Expert. With regards to your statement ‘I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology[,] this is technically correct. However, again in the name of immersion and the need to become a Subject Matter Expert, we are arranging temporarily for your work tasks, work environment and product exposure to basically mimic that of an agent for your benefit. Additionally, specific to your statement ‘I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance[,]’ I should clarify that aligning your performance standards with that of an agent is not a main focus. Of course we want you to handle calls properly – and I have no doubt you will – but I do not anticipate any detailed comparison to agents in terms of how the calls are handled. I do believe there will be periodic confirmation of phone time, again not in comparison to agents, but to ensure that the exposure and immersion are occurring. If there are confirmations of phone time, those may be used to determine whether we have fully satisfied our goal of immersion, in terms of exposing you to the phone roles and giving you the needed active time on the phones. I feel I must stress that this immersion plan is driven significantly by your continued emphasis on its importance. I wholeheartedly agree that significant exposure (as you’ve indicated, 4-6 months dedicated time, minimum) to the product and the role is necessary to create training programs and train effectively on most possible scenarios. Because we have yet to arrange dedicated time to immersion for you, and because you’ve indicated it’s critical, we are doing it now. Once the immersion plan is completed, my understanding is that you will be a Subject Matter Expert and capable of training as one. Keeping in mind that maximum exposure has been the goal for your immersion plan and your schedule, I welcome your suggested schedule changes. Thanks. Petitioner to Laura Lampkin – October 3, 2014, 5:07 p.m. Laura: I do appreciate the thoughtfulness put into the plan that I’ve requested. I must say, that from my exposure, I find the majority of inbound calls to contain a sales opportunity and while sales is an important part of our member services and revenue generation, it is not the core of the educational process or training programs expected curriculum. It is certainly necessary to have agent exposure to speak to the experiences and topics that new hires will encounter in production. More so, it is a necessity to explain the ‘how’ and ‘why’ of processes and/or procedures that are expected of an agent. I feel very comfortable in what I have expressed to both Pam and yourself as the requirements for effectively and efficiently learning and understanding the RTX Workflow to a level which is agreeable with the creation of curriculum and the training of such curriculum. The activity of taking live calls, which unfortunately was not available sooner, without interruption, is a requirement. Subject matter expertise is built upon that foundation and will continue to fluctuate until a time comes when the systems and processes used do not change on a consistent basis. As for being held to the same standards as the agent’s in production, I can only speak to what was written and manner in which it was relayed. I stand behind my statements that effective training is necessary before the ability to create, direct or lead a training class or materials. I also stand behind my statements that the schedule change is radical, causes personal conflicts and is not a necessary requirement to achieve the level of immersion and learning that has been requested. For the sake of curiosity, was there a logic to creating a structured ‘agent’ schedule which includes my start, break, lunch and end times? As a salaried employee, I was already under my own direction, likely going to extend my hours and/or utilize unscheduled Saturday’s to afford additional learning time – as I found necessary – due to the estimated time frame I had given to both Pam and yourself by request. This package is wrapped very nicely as a thoughtful contribution to my success, but as a training professional who has interacted with the agent’s and call queue – albeit limited, and with the direct knowledge of what has been lacking in my ability to be fully developed as an employee of RTX, the delivered structure places a burden on my personal needs – which are based around my expected schedule. In addition, a rotation does not deliver nor guarantee delivery of experiences that can’t be extracted from a call within my standard scheduled hours. It would be a great assistance, if we could kindly not alter my schedule and allow me the opportunity I have needed within the confines of what has been established as my schedule expectations for the last six months. Should I find that a knowledge gap exists, I will actively adjust to correct and close such gap. Ms. Price testified as to the accuracy of the matters discussed by Ms. Lampkin in her e-mail reply to Petitioner. Additionally, the undisputed evidence is that Petitioner unilaterally withdrew from the immersion program after having been a part of the same for only two weeks. The evidence is also undisputed that Respondent did not change Petitioner’s pay, benefits, or job-related opportunities as a consequence of Petitioner entering and subsequently leaving the full immersion program. The e-mail exchange between Petitioner and Ms. Lampkin show a number of things, none of which support Petitioner’s claim of retaliation. As an initial matter, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, clearly establishes that Respondent knows its business operations better than Petitioner. Next, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, establishes that Petitioner’s immersion into Respondent’s operations was a temporary assignment scheduled to last about two months and that the planned immersion was in furtherance of Respondent’s legitimate business interests of having Petitioner to perform his job at a competence level higher than “marginal.” Furthermore, Petitioner’s correspondence of September 19, 2014, wherein he specifically requests “complete and full immersion,” when compared to his correspondence of October 3, 2014, wherein he retreats to a preferred experience of ‘agent like immersion,’ shows that Petitioner was simply trying to the game the system in an attempt to avoid “plac[ing] a burden on [his] personal needs” as repeatedly referenced in his correspondence of October 3, 2014. Petitioner offered no credible evidence that Respondent’s decision to fully immerse him, on a temporary basis, in its call center operations was done for reasons other than those related to improving Petitioner’s job performance, and concomitantly Respondent’s business operations. In other words, Petitioner failed to prove that Respondent’s decision to fully immerse him in its call center operations was done in retaliation for his having alleged that Ms. Price discriminated against him on the basis of his gender. In the Employment Charge of Discrimination, Petitioner alleges, in part, the following: I suffer from three chronic disabilities as explained to my employer when requesting reasonable accommodation to work from home, when not tasked with a training class, the call center floor and office space triggers disability-related episodes and limits my ability to concentrate and effectively focus. Respondent continues to make the process of providing me reasonable accommodations difficult and shows no desire to work with me, or my physician’s requirements, to allow me to quickly return to work and perform my job functions. The fact that Petitioner suffers from recognized disabilities is not in dispute. On or about October 30, 2014, Petitioner informed Ms. Lampkin during a telephone conference that he believed that he had one or more physical impairments that might warrant an accommodation. Specifically, Petitioner reported that the workplace lighting was bothersome and that he would work better with incandescent or natural lighting. Ms. Lampkin asked Petitioner to provide additional information about his lighting concerns so that Respondent could determine whether workplace modifications were necessary. Petitioner also informed Ms. Lampkin that he was not sure whether his lighting concerns were temporary or would be on-going. On November 3, 2014, Petitioner e-mailed Ms. Lampkin stating, in part, the following: I am unable to go into the call center and back office areas as it directly impacts my sense of well-being and heightens my medical concerns. Therefore I am unable to report to the office to conduct my required function of creating training curriculums and educational products. My physicians are preparing documentation for you as requested. Due to the nature of my core job functions, I am requesting that work from home be authorized as a reasonable accommodation. As of November 3, 2014, the only specific medical concern mentioned by Petitioner was his sensitivity to lighting. On or about November 11, 2014, Petitioner gave Ms. Lampkin a letter from his physician. The physician’s letter states, in part, that Petitioner should be allowed “to work from home when [he] is not tasked with conducting training classes” because Petitioner “will be better able to perform the essential functions of his position by working from home.” The letter goes on to state that “the work environment triggers severe panic attacks” and that Petitioner “has become increasingly sensitive to and made ill by various fragrances and fluorescent lighting, all of which would be eliminated by working from home.” The physician also notes that “[f]urther support of this request is the fact that [Petitioner’s] primary job functions can effectively be performed remotely, with the need for being present in the office relegated to those times when he must attend meetings for which teleconference is not available or to perform the training that he conducts.” The physician's letter did not indicate that Petitioner was unable to perform the essential functions of his job without a reasonable accommodation. Rather the letter stated that Petitioner would be “better able to perform the essential function of this position by working from home.” Based on the rather cryptic information contained in the physician's letter, Respondent was unable to grant Petitioner's request for a reasonable accommodation. In response to the physician’s letter, Respondent, on November 13, 2014, informed Petitioner that “[a]dditional information is necessary in order to make a determination regarding [the] request for reasonable accommodation.” The additional information requested from Petitioner’s physician is as follows: What are the environmental factors which trigger the panic attacks? When is the condition(s) expected to resolve and a return to work to occur? What about the conditions(s) prevents performing daily work tasks in the workplace, but permits conduction of classroom training in the workplace? Are there other alternatives which can be offered, outside of working from home, which allow the essential job functions to be performed? If so, what are those alternatives? The previous letter states that the primary job functions can be performed from home. What are those primary job functions which were referenced in that statement? The previous letter reference enclosures, but none were provided with the letter. Please provide any relevant enclosures for review. Each question asked by Respondent was reasonably tailored so as elicit responses that would better enable Respondent to analyze Petitioner’s request for accommodation and to explore the availability of other possible accommodations. On November 19, 2014, Petitioner wrote a lengthy message to Ms. Lampkin contesting Respondent's need for the additional information. In response to this missive, Ms. Lampkin, on November 20, 2014, informed Petitioner that his “request for accommodation has been conditionally denied pending the receipt of the required information.” On November 21, 2014, Petitioner sent another missive to Ms. Lampkin and argued therein that Respondent's request for additional information was overbroad and that in his opinion he had provided sufficient information so as to allow Respondent to grant his request for accommodation. In response to the concerns expressed by Petitioner, Ms. Lampkin provided a detailed explanation to Petitioner of why additional information was needed to evaluate his request for accommodation and encouraged Petitioner to provide the information “as expeditiously as possible so that we can move forward with granting you an accommodation.” His protestations to the contrary notwithstanding, Petitioner had not, as of November 21, 2014, provided Respondent with sufficient information to allow Respondent to determine what reasonable accommodations were necessary and available in order to address Petitioner’s mental and physical impairments. On November 24, 2014, Petitioner supplied Respondent with what is described as “supplemental documentation” from his physician. This documentation was not, however, information entirely responsive to the six points of inquiry mentioned in Respondent’s November 13, 2014, correspondence to Petitioner. Based on the supplemental information, Respondent informed Petitioner that it would modify the workplace to accommodate Petitioner’s sensitivity to light and scents. Petitioner was directed to report to work on December 1, 2014. Petitioner did not return to work on December 1, 2014, as instructed. Petitioner e-mailed Respondent on December 3, 2014, to state that he had not received the e-mail instructing him to return to work on December 1, 2014. He also indicated that he did not believe that all of his workplace concerns had been addressed. Ms. Lampkin responded on December 5, 2014, indicating that Respondent had addressed all known workplace issues and also informed Petitioner that additional information would be considered, if supplied. Specifically, Ms. Lampkin stated to Petitioner: I, too, am willing to continue to engage in this interactive process with you. The next steps in the process, should your position remain that your condition(s) warrant further accommodation including working from home, involve your supplying me with specific responses to the informational requests I have previously made. The informational requests that I made were not entirely answered by the response I received from you dated 11/21/14. I am happy to re-send you the form so that you can provide the remaining information. Please advise. On December 9, 2014, Ms. Lampkin provided Petitioner with another copy of the form setting forth the information requested on November 13, 2014. In her correspondence of December 9, 2014, Ms. Lampkin explained that “[t]he information contained in the form that you returned to me was insufficient to enable RTX to approve your request to telecommute indefinitely or to allow RTX to evaluate what reasonable accommodations other than what RTX has already offered may be available.” On December 11, 2014, Ms. Lampkin again requested that Petitioner provide her information responsive to those items enumerated in her correspondence of November 13, 2014. On December 15, 2014, Petitioner advised Ms. Lampkin that he was expecting to receive from his physician information responsive to her requests and that he would forward the same to her as soon as possible. On or about December 18, 2014, Petitioner sent Respondent a second letter from his physician. In the letter, Petitioner’s physician stated definitively that “I do not find any other accommodations available other than for the patient to be afforded the ability to work remotely when not tasked with conducting training classes which require physical presence.” Based on that statement by Petitioner's physician, Respondent agreed to grant Petitioner a reasonable accommodation and to permit him to work from home when not tasked with conducting classroom training. Petitioner was advised that January 2, 2015, would be his official return-to-work date. Respondent acted reasonably, and communicated with Petitioner appropriately, when seeking information related to Petitioner’s desire to work from home. The evidence does not support Petitioner’s contention that Respondent unreasonably delayed granting Petitioner’s request to work from home. On or about January 5, 2015, Petitioner, via videoconference, met with Ms. Price to discuss the new hire training class that Petitioner was to conduct on January 12, 2015. The following day, on January 6, 2015, Petitioner sent an e-mail to Ms. Price and Ms. Lampkin and complained therein of not having enough time to prepare for the January 12, 2015, new hire training session. Petitioner, nevertheless, assured Respondent that “it will get done” and any questions that he could not answer during the training session “will go to the parking lot while [he] obtains an answer for the students.” On Monday, January 12, 2015, the day of the new hire training session, Petitioner, at 9:52 a.m., sent the following e-mail message to Ms. Price and Ms. Lampkin: I have spent 10.5 hours within the ER on Sandlake Road and awake for over 22 hours, so I will not be in today to begin your impromptu FAC training class. I will either be in tomorrow or we can consider this my constructive discharge/resignation and I will simply limit my interaction with RTX through the ongoing investigations. The choice is yours, of course, but kindly let me know so I can plan my Tuesday accordingly. I need to rest, now. Thank you. At 6:28 p.m., on January 12, 2015, Ms. Lampkin, in response to Petitioner’s e-mail, informed Petitioner of the following: Your absence today is unexcused. You are being given the opportunity to convert today’s absence to an excused absence by presenting a doctor’s note. If today’s absence remains an unexcused absence, you are subject to discipline. We are expecting you to be present to teach the class tomorrow, and to be ready to teach at 8:00 a.m. You were to have printed the materials earlier, and we expect that you will be ready to teach at 8:00 a.m. Petitioner did not report to work on January 13, 2015, to conduct the training session. Instead, Petitioner, at 9:41 a.m. on January 13, 2015, informed Ms. Lampkin that “the curt and underhanded behavior of RTX increases my anxieties . . . [and] it has been determined by myself and my health care providers that it is to my benefit to continue with a constructive resignation.” Respondent deemed Petitioner as having voluntarily resigned his employment with the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Resort Travel and Xchange, did not commit unlawful employment practices as alleged by Petitioner, Jason L. Van Horne, and denying Petitioner's Employment Charge of Discrimination. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 18th day of March, 2016.
