The Issue Did the Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant (Placida), unlawfully discriminate against Petitioner, Jon A. St. Laurent, in hiring because of his age?
Findings Of Fact Placida is a restaurant in Port Charlotte, Florida. In February 2015, it advertised on Craig’s List for a cook offering pay of $14.00 per hour and a $500.00 signing bonus. Placida operates seasonally. It closes May of each year. It re-hires when it re-opens in September. The evidence does not establish that employment with Placida continues season to season. Mr. St. Laurent responded to the advertisement. Mr. St. Laurent is qualified for the position. He is a former chef with years of experience. Mr. St. Laurent was 64 years old. He submitted an application. The then manager, Wendy Hummel, interviewed Mr. St. Laurent on February 24, 2015. Ms. Hummel asked questions that demonstrated she was weighing Mr. St. Laurent’s age against him. She asked him if at his age he was capable of standing on his feet for long hours. She also asked if at his age he was capable of working the kind of shifts that are required in a high-volume restaurant. Placida did not contact Mr. St. Laurent to advise him whether it had decided to hire him. He saw more advertisements for cooks by Placida on Craig’s List, also offering a $500.00 signing bonus. So Mr. St. Laurent emailed Ms. Hummel to remind her of his availability and qualifications and to inquire if Placida had decided whether to offer him a job. In emails, as early as March 7, 2015, Mr. St. Laurent reminded Ms. Hummel of his qualifications and of her comments about his age and its affect upon his ability to perform the job. After repeated emails from Mr. St. Laurent, Ms. Hummel replied saying that his skills did not meet the job requirements. Her email says the restaurant was looking for line cooks with experience in a large restaurant and his skills were more geared towards large event cooking. Ms. Hummel also testified, albeit unpersuasively, that Mr. St. Laurent’s experience was not well suited for Placida’s operation. She eventually, denied questioning Mr. St. Laurent’s ability to perform the job because of his age. But the majority of her testimony about the comments was along the lines of saying that she knows better than to make such comments. One example is: “That, that basically, I would be very hard pressed to believe I asked him anything about his age . . . .” (Tr. p. 32). This way of addressing the issue, Mr. St. Laurent’s testimony’s consistency with his early descriptions of the interview, and the undersigned’s observation of the witnesses results in a conclusion that Mr. St. Laurent’s testimony is more credible and persuasive. Placida did not hire Mr. St. Laurent solely because of his age. When Placida refused to hire Mr. St. Laurent and in the months following, Placida worked consistently and urgently to recruit and employ cooks, as shown by continuing advertisements and signing bonuses. Yet it refused to hire a qualified applicant, Mr. St. Laurent. The evidence proves that this was because of his age. If Placida had employed Mr. St. Laurent effective March 1, 2015, until closing for the season on May 1, 2015, he would have worked for eight weeks and three days. Paid $15.00 per hour for 40 hours a week, Mr. St. Laurent would have earned $4,816. In addition, Mr. St. Laurent would have been paid a $500.00 signing bonus. The total damages in lost wages or “back pay” to Mr. St. Laurent, caused by Placida’s discrimination against him because of his age, is $5,316.00.
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 that: Holds that Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant, did not employ Petitioner, Jon A. St. Laurent, solely because of his age; Prohibits Respondent, Placida SAS, LLC d/b/a, The Fishery Restaurant, from discriminating on account of age in its hiring; and Awards Petitioner, Jon A. St. Laurent, back pay in the amount of $5,316.00. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.
The Issue The issue is whether Respondent discriminated against Petitioner based on his national origin in violation of Section 760.10(1), Florida Statutes (2008).
Findings Of Fact Respondent operates a residential and commercial waste collection and disposal business. Respondent has multiple locations across the southeastern United States. It employs approximately 8,623 employees. Payroll Management, Inc. (PMI) is an employee leasing company. It assists companies with their human resource issues, payroll needs, employee benefits and worker compensation coverage. Respondent is a client of PMI. Petitioner is an Hispanic male, who was born in Cuba in 1972. As a permanent resident, Petitioner is entitled to work. Petitioner is able to speak some English but occasionally needs a Spanish interpreter. David Otano was a driver/supervisor for Respondent's predecessor in Panama City, Florida. When Respondent bought the predecessor in 2006, Mr. Otano worked as operations manager for Respondent. Petitioner and Mr. Otano are friends. In February 2008, Mr. Otano recommended that Respondent hire Petitioner as a "slinger." A slinger rides on the back of a garbage truck to assist the driver in collecting garbage. On February 11, 2008, Petitioner filled out an employment application with PMI. At that time, Petitioner signed an acknowledgement that he was a leased employee of PMI who was assigned to work for a work site employer. Among other things, the acknowledgement stated as follows: I acknowledge that I am aware that PMI adheres to a grievance policy and it is the employee's right to file a grievance if he/she feels they have been unfairly treated. I understand that if I do not utilize the grievance procedures, my unemployment benefits may be denied me. PMI's employment application package also includes the following employee's certifications/acknowledgements: I CERTIFY and ACKNOWLEDGE that the following is true and correct: I have read, have been read, or will read IMMEDIATELY upon hire, the Employee's Post-Hire Handbook ("Handbook"). Further, I understand and agree to the provision as stated in the Handbook and within the Post- Hire Handbook, Post-Hire Packet, policy manual and safety manual. * * * I hereby acknowledge that I have received a copy of the PMI Post-Hire Handbook . . . . Petitioner signed the certification/acknowledgement on February 2, 2008. PMI's Post-Hire Handbook contains the company's harassment policy. The policy provides as follows in pertinent part: 3. Any employee who feels victimized by harassment should IMMEDIATELY report it to PMI's Human Resource Department . . . PMI will undertake a careful investigation, which may include interviewing other employees who have knowledge of the alleged incident or similar situations. Your complaint, along with the investigative steps and findings, will be documented in accordance with our dispute resolution procedures. PMI routinely trained Respondent's managers and supervisors about the non-discrimination policy. The instruction included an admonition to make decisions about employees based on their work performance and not because of their ethnicity or any other reason. Respondent and PMI knew that Spanish was Petitioner's first language when he was hired. They also knew Petitioner was originally from Cuba. At times, Petitioner had difficulty communicating with his direct supervisor, Penny Atkins. On those occasions, Ms. Atkins found another Spanish-speaking employee, such as Mr. Otano, to act as a translator and/or interpreter. It was not unusual for Respondent to employ people who spoke very little English. For example, Respondent once hired a Russian who spoke limited English. There were no problems with Petitioner's work performance when he was on a route. However, Petitioner was sent home when he was not dressed properly, such as wearing shorts instead of long pants or not having on work boots. Petitioner lived about two miles from the work site. When he was sent home, Ms. Atkins expected him to come right back to work. Decisions to send Petitioner home due to improper clothing were not based on Petitioner's national origin. Residential slingers usually worked Monday, Tuesday, Thursday, and Friday. Sometimes, Petitioner was sent home when there were too many slingers and not enough routes to run. If possible, such time off would be made up on a Wednesday. Occasionally, instead of sending a slinger home, Ms. Atkins would allow two slingers to ride on the back of one residential truck. At other times, Petitioner was given more work or extra routes to ride when there were not enough slingers. There is no persuasive evidence that Ms. Atkins' scheduling decisions were related to the national origin of any employee. Mr. Otano testified that Ms. Atkins wanted him to fire Petitioner because Petitioner did not speak English. Mr. Otano's testimony in this regard is contrary to more persuasive evidence. In April 2008, Mr. Otano's job description changed. Instead of being operations manager, he became a supervisor on an equal footing with Ms. Atkins. Mr. Otano considered the change a demotion. Even though Mr. Otano was no longer in Petitioner's chain of command, he continually complained to Ms. Atkins that she was not treating Petitioner fairly. Because Mr. Otano and Ms. Atkins argued about Petitioner, Respondent's general manager told Mr. Otano to worry about his own responsibilities, roll- offs and front loads, and to let Ms. Atkins worry about residential. In April 2008, Petitioner's wife had a car accident. Petitioner called Ms. Atkins to inform her that he would not be at work the morning after the accident. Ms. Atkins sent a driver in a truck to pick up Petitioner. Sometime in July 2008, Petitioner complained to Respondent's general manager that Ms. Atkins was discriminating against him. Petitioner understood that his complaint would be investigated. On August 28, 2008, Petitioner suffered an injury to his arm and shoulder while working as a slinger. He was transported to a local emergency room/walk-in medical facility. Respondent immediately reported the accident to PMI who was responsible for handling the workers’ compensation claim. After receiving medical treatment and physical therapy for a period of time, Petitioner returned to work with light- duty work restrictions imposed by his physician. Ms. Atkins told Respondent there was no such work available at the work site and sent him home. A second doctor's note dated September 29, 2008, stated that Petitioner could do no work for three weeks. On or about September 29, 2008, Respondent decided that it would be able to accommodate Petitioner's need for light-duty work with restrictions as required by a doctor's note. Once that decision was made, Chris Traughber, Respondent's safety manager, called PMI. PMI then contacted Petitioner's physician to let him know that Respondent would accommodate any restrictions if Petitioner was released to work. On or about October 2, 2008, PMI received a note from Petitioner's physician. According to the note, Petitioner was released to work with restrictions of no lifting, pushing, or pulling, effective that same day. Petitioner reported to work on October 3, 2008. At that time, Petitioner was taking a prescription drug for pain, Lortab. For light-duty work, Ms. Atkins instructed Petitioner to sit in a chair under a shed in the yard and note the truck numbers and times that each truck entered and left the yard. The job could not have been performed anywhere but outside in the yard near the gate. The trucks usually left in the early morning around 4:30 a.m. Some trucks would return around 8:00 or 9:00 a.m. Others would return at 6:00 p.m. Trucks might come and go from the yard anytime there was a mechanical problem with a truck on a route. The shed provided Petitioner shade and some protection from rain. Respondent created this job for Petitioner in order to return him to work. Ms. Atkins did not tell Petitioner that he could not take breaks or go to the bathroom. The most credible evidence indicates that Petitioner sometimes visited with Natalie Richardson, Respondent's dispatcher, in the air-conditioned dispatch office on his breaks. There are restrooms in the dispatch office and in the mechanic's shop area. There also was a portable toilet close to the shed where Petitioner was stationed. Petitioner's testimony that he urinated in his clothes on September 7, 2008, because it was raining and he was not allowed to go to the bathroom is not credible. Petitioner also took lunch breaks while he was working light duty. On one occasion, Petitioner left for lunch and did not come back to work. On or about October 8, 2008, Petitioner was sitting under the shed at work when he had a seizure or fainting spell that caused him to fall down on the ground and foam at the mouth. An ambulance transported Petitioner to the emergency room of a local hospital. There is no competent medical evidence regarding the incident. A doctor's note dated October 10, 2008, stated that Petitioner could return to light-duty work on October 18, 2008, with restrictions against swimming, driving, or climbing. On or about October 14, 2008, PMI sent a memorandum to Respondent, advising that Petitioner could return to light-duty work on October 18, 2008, with restrictions of no swimming, driving, or climbing. Petitioner returned to work light duty as restricted by his physician. Once again Respondent directed Petitioner to sit under the shed and count trucks. He was able to go to lunch and take breaks as needed. On or about October 13, 2008, Petitioner spoke to Respondent's general manager at the work site. During the conversation, Petitioner complained that Ms. Atkins was harassing him and treating him unfairly. Petitioner was told to go ahead and file a complaint with PMI. Petitioner subsequently filed a complaint with PMI, alleging that Respondent was harassing him and treating him unfairly. That same day, PMI learned that Petitioner had filed an employment discrimination claim with FCHR. Because FCHR was investigating the grievance, PMI did not investigate Petitioner's allegations. In the fall of 2008, Respondent began a reduction-in- force (RIF) process for economic reasons at multiple work sites. On or about November 21, 2008, Petitioner was reassigned to PMI along with over 30 other employees, several of which worked at Petitioner's work site. Respondent's Chief Financial Officer, Bruce Roy, decided which employees would be reassigned to PMI during the RIF. Mr. Roy worked at Respondent's corporate office and did not directly supervise the employees on the list. Petitioner's testimony that he was not aware that he had been reassigned until months later is not persuasive. The record is not clear as to the last day that Petitioner actually worked at the work site. Between October 2, 2008, and June 10, 2009, Respondent terminated/reassigned 99 employees at multiple work site locations. The RIF included men and women of Caucasian, African-American, Hispanic, and Asian ethnicities. There is no persuasive evidence that Respondent targeted Hispanics in deciding which employees to include in the RIF.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of March, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of March, 2010. COPIES FURNISHED: John S. Mead, Esquire Michael WM Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549 Jeffery Daryl Toney, Esquire Law Office of Jeffery D. Toney, Sr. 502 North Main Street Post Office Box 579 Crestview, Florida 32536 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the 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.
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2004.
The Issue The issue is whether Respondent, a restaurant, unlawfully discriminated against the Petitioner, who is African-American, by refusing to serve her because of her race.
Findings Of Fact At approximately 2:25 p.m., on July 2, 2003, Petitioner, an African-American resident of Minneapolis, Minnesota, entered the premises of a Denny’s Restaurant located at 14697 Duval Road, Jacksonville, Florida, to eat a meal. Petitioner had spent the previous night in Gainesville, Florida, and had interviewed for a position with the City of Gainesville that morning before driving to Jacksonville to fly home to Minneapolis. Petitioner approached the wait stand and waited approximately three minutes to be seated. Petitioner noticed only five guests in the restaurant at the time she was seated, all of whom were Caucasian. Petitioner was seated close to a Caucasian family of four and a single Caucasian male seated at another table. Petitioner did not claim that she had been segregated in the restaurant, and admitted that she had been seated close to tables with customers of other races. Immediately after being seated, Petitioner asked the hostess for a cup of hot water with lemons, which was promptly delivered to her by the hostess. Petitioner was treated respectfully by the hostess. After the hostess left, Petitioner drank her beverage while she reviewed the menu and waited to be greeted by her server and to have her order taken. Although there appeared to be three servers in the restaurant at the time of Petitioner’s visit, only one appeared to be serving. The others appeared to be completing their “side work,” that is, restocking and end-of-shift cleaning duties. The only person actually serving customers during Petitioner’s visit was Rhonda Nicks, a Caucasian woman. The restaurant was short staffed during this period due to a shift change and another server’s failure to show for her shift. While she waited to be served, Petitioner observed that two Caucasian women entered the restaurant, were seated, and were promptly served by Ms. Nicks who appeared to be the only server in the restaurant. Petitioner next observed as a Caucasian man and woman entered the restaurant, were seated, then promptly had their drink and food orders taken and served by Ms. Nicks. After waiting 20-25 minutes, and not having her food order taken, or even being acknowledged by the server, Petitioner went to the cashier’s stand where she was met by Audrey Howard, an African-American employee of the restaurant, who asked Petitioner if she wanted to see a manager. Petitioner replied that she did want to see a manager, and one was summoned. After waiting a few minutes, Petitioner was greeted by a Caucasian manager who identified himself as Mike Kinnaman. After speaking with Petitioner, Mr. Kinnaman offered to immediately put in Petitioner’s food order, to even cook the meal himself, and to provide the meal at no charge. Petitioner refused Mr. Kinnaman’s offer, stating that she had to return her rental car at the airport, then catch a flight. Mr. Kinnaman then offered Petitioner a business card on which he wrote “1 free entrée, 1 free beverage, 1 free dessert . . . Unit #1789." Mr. Kinnaman told Petitioner that she could use the card for a free meal at another time. This offer was made based upon the manager’s belief that Petitioner did not have time to eat and needed to leave for the airport. After speaking with the manager, Petitioner left the restaurant at approximately 3:00 p.m. She drove the short distance to the airport, removed her luggage and belongings from the rental car, turned in the car, and received her receipt which showed that she had turned in the car at the airport Hertz location at 3:20 p.m. Although Petitioner told the Respondent’s manager that she had to leave to catch a flight, the evidence showed that Petitioner’s flight was not scheduled to leave for another four hours. Petitioner’s rental car receipt documented the fact that she had a two-day rental and could have kept the car for almost another full day. Petitioner was in no jeopardy of incurring additional rental car charges or of missing her flight when she hurried from the restaurant at 3:00 p.m. Although Petitioner observed only nine other customers in the restaurant while she waited to be served, Respondent’s records and the testimony of Audrey Howard, a former cook at Respondent’s restaurant, 24 customers were served in the restaurant between 2:00 and 3:00 p.m. on the day of Petitioner’s visit. Although Petitioner testified that she was the only African-American customer in the restaurant, Ms. Howard recalled a table of two African-American patrons who were served during the time period when Petitioner was in the restaurant. She specifically recalled these patrons because the gentleman returned his omelet to the kitchen, asking for more cheese. During her time in the restaurant, Petitioner observed only five employees. Respondent’s records demonstrate that 14 hourly employees were in the restaurant between 2:25 and 3:00 p.m. From where she was seated in the restaurant, it is likely that Petitioner could not see every customer and employee in the restaurant. Petitioner never attempted to call a server over to her table, nor did she ask the hostess to either take her order or ask a server to provide her with service while she waited. Petitioner did not complain to the manager that she had been discriminated against. She complained that she had received poor service. Respondent requires training for all of its employees on diversity and discrimination issues before they are allowed to work for Respondent. Every server who testified at hearing had specifically undergone diversity and discrimination training. Although Respondent has a history of past discrimination against African-Americans as evidenced by a consent decree entered into by the company with the United States Justice Department, it has since received national awards and recognition for its strides in the areas of discrimination and diversity. Respondent takes claims of discrimination very seriously, and has a zero tolerance standard for acts of discrimination by its employees. Respondent’s managers are required to report all claims of racial discrimination to a 1-800 hotline. No call was made by the manager in this case because he did not believe that a claim of discrimination had been made by Petitioner when she claimed she had received poor service. Petitioner offered no evidence that she had suffered damages as a result of the poor service she received at the restaurant.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Ms. McAdory's Petition for Relief. DONE AND ENTERED this 20th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan S. Erdelyi, Esquire Marks Gray, P.A. Post Office Box 447 Jacksonville, Florida 32201 Charlene McAdory 417 Oliver Avenue North Minneapolis, Minnesota 55405 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner was wrongly terminated from employment by Respondent, and, if so, whether monetary damages are warranted.
Findings Of Fact Petitioner, Henry Woodie, is a 66-year-old African- American man. He has a bachelor's degree in math and education, a bachelor's degree in accounting, and a master's degree in business administration. Petitioner first became employed by Respondent in August 2004, as a DCC at Ranier House, a group home owned and operated by Respondent, Independent Group Home Living (IGHL). In February 2007, Petitioner was promoted to the position of overnight (or nighttime) ARM for Ranier House. This promotion occurred after Petitioner filed a lawsuit against Respondent for discrimination. A fellow employee (Sarah McElvain, a white female) had been promoted to ARM for Ranier House some months earlier. Petitioner felt slighted because he had not been granted an interview, although he had more formal education than McElvain. However, McElvain had considerably more experience in the healthcare industry than Petitioner at that time. Nonetheless, Respondent created a position for Petitioner equal in status to the position McElvain obtained. In February 2007, Petitioner was made the overnight ARM; he and McElvain were then co-managers of the Ranier House as McElvain took the day shift. Neither had supervisory status over the other. Each was responsible for assisting developmentally- disabled adults at Ranier House by providing hands-on assistance with daily living activities. Petitioner worked from approximately midnight until 8:00 a.m. as the nighttime ARM. McElvain's hours were generally 9:00 a.m. until 5:00 p.m. The two managers' paths did not cross very frequently, although McElvain would come in early on many occasions to have her morning coffee and chat with the DCC workers. She may or may not have contact with Petitioner during those visits. In mid-July 2007, Petitioner noticed that there was a shortage of available food products at Ranier House. Inasmuch as Petitioner was responsible for preparing bag lunches for the customers (residents of the house), he purchased some lunch meats and other products from his personal account on July 30, 2007, at 2:39 p.m., i.e., outside his normal work hours. It was understood that any such purchases would be reimbursed. Petitioner contends the food shortage existed because McElvain was overspending the funds budgeted for food, thus resulting in shortages. However, McElvain made food purchases using a WalMart debit card provided by Respondent. The card was replenished with funds each month by Respondent's corporate offices in New York. If the card was not timely replenished, McElvain could not make food purchases. This is the more reasonable and likely explanation of why shortages sometimes occurred. Any time a food shortage occurred, one of the ARMs could make a purchase with their own money (if they were able) and then obtain reimbursement from the corporate office. At 10:41 p.m. on July 30, 2007, some nine hours after Petitioner had made a food purchase using his own money, McElvain made a very large purchase ($711.11) of food and other items using the corporate WalMart card. McElvain was also shopping outside her normal work hours. McElvain brought the groceries to Ranier House at around 11:30 p.m., i.e., just prior to Petitioner coming on duty for his regular night shift. McElvain and DCC LaShonda Hemley sorted the purchase by item type. They then distributed the items to the rooms or areas where those items would ultimately be put away for storage. For example, cleaning products were left near the storage closet; food was left near the refrigerator or pantry; household goods were left in the kitchen, etc. After the food items had been distributed, McElvain saw Petitioner in passing and told him the goods needed to be put away. She then left the Ranier House. Petitioner does not specifically remember being told to put away the groceries. He does remember being told that the groceries were being distributed around the house so they could be put away, but assumed that someone else would do that job.2 McElvain and Hemley did not put the groceries away because of several stated reasons: McElvain had been working and going to classes all day and she was tired; the night shift was coming on duty and would be paid to put the groceries away, whereas McElvain and Hemley would have to be paid overtime to do that job; and McElvain made a presumption that Petitioner would follow through on her statement that "the food needs to be put away." Neither Petitioner, nor his DCC staff put away the food and supplies. As a result, dangerous chemicals were left sitting in the hallway all night long. Perishable foods were left in the garage (right next to the refrigerator) all night long and spoiled. Petitioner did not put away the food because of two stated reasons: Usually the person who buys the groceries puts them away; further, he had previously suffered a stroke and did not feel fully recovered. As for his medical condition, his physician had released Petitioner to work as of July 9, 2007 (several weeks prior to the incident in question), but Petitioner did not personally believe he was fully able to perform his duties. He did not make a request to his employer for a lighter work load or relief from his duties, however. Further, the final hearing was the first time Petitioner raised his health concerns as a reason why he did not put the groceries away. That testimony is not credible and flies in the face of the fact that Petitioner said he put away the groceries that he had purchased. Petitioner does not remember McElvain asking or telling him to put away the groceries. He says he would have, had he been asked. This statement is not credible since the groceries were in full view throughout Petitioner's shift, but he did not put them away. At some point during the night of July 30 or 31, 2007, Petitioner opened some of the bags containing perishable foods and used some of them to make sandwiches for the customers. He did not put the opened packages or any of the other bags of groceries into the refrigerator at that time. Petitioner does not accurately remember, but believes the lunch meats he used may have come from food he had bought (and put away) earlier in the day. Besides the perishable foods, there were also some bleach and cleaning supplies left unattended. These items were placed on the floor in a hallway immediately adjacent to a locked storage closet where they are to be stored. The closet was locked and the keys were located in the office at Ranier House. Petitioner maintained at final hearing that he did not see the items even though they were right next to customer rooms (which are supposed to be checked every 15 minutes throughout the night). It is hard to reconcile Petitioner's statement with the pictures of the bleach introduced into evidence at final hearing. The location of the bleach is patently obvious to even the most casual observer. Further, a letter written by Petitioner to an unknown recipient clearly states, "When I came to work at Mid-night [sic], I noticed about 50 bags of groceries spread out on the floors of different rooms." This letter, which Petitioner admits writing, contradicts his contention that he did not see the goods. One of the concerns about the bleach was that one customer was prone to getting up at night and finding something to drink. He would apparently drink anything, including bleach. Knowing that, it is unconscionable that Petitioner would allow the bleach to sit in close proximity to the customer bedrooms over an entire eight-hour shift. On July 31, 2007, McElvain came to work around 8:30 a.m. When she passed Petitioner on her way in, he said something akin to "I'm out of here" and left. McElvain then spotted the spoiled food and other items which had not been put away. She became extremely angry about that negligence. McElvain sorted through the food products and identified $167.27 worth of groceries that were no longer edible. She took pictures of the bags of groceries that were placed in different areas around the house. Then she called her supervisor, Joyce Herman, to lodge a complaint. McElvain told Herman that she (McElvain) had instructed Petitioner to put away the food items or, at least, had told Petitioner that the items needed to be put away. Herman contacted Petitioner at his home, inquiring as to why he had not put the groceries away. He said that he had not been told to do so. Herman says that the job descriptions for ARMs would suggest that someone needed to put the groceries away; if one ARM didn't, the other should. She places the primary blame in this case on Petitioner because the groceries were left out for his entire shift. Herman instructed Petitioner not to contact McElvain, but he did so anyway. Petitioner left a message on McElvain's home phone and then one on her cell phone. The messages were not preserved and could not be played at final hearing. However, a transcript of the home phone message, which both parties indicated was an accurate reflection of what was said, reads as follows: "Yes, Sarah, this is [Petitioner]. I was wondering why you told Joyce [Herman] that lie that you told me to put the groceries away and I didn't. Number one, you don't tell me what to do and number two, you could have put the groceries away yourself. Give me a call." McElvain says part of the message was stated in a "nasty tone," but Petitioner disagrees. McElvain contacted Herman and forwarded Petitioner's voicemail message so Herman could listen to it. Both McElvain and Herman describe the tone in Petitioner's voice as angry and confrontational. The voicemail was alternatively described by Respondent as "threatening," "confrontational" or "upsetting." Petitioner admits that he was angry when he made the call and might not have made the call had he not been angry. Petitioner and McElvain did not appear to have had a smooth or cordial working relationship, although they were peers. Upon hearing the voicemail and considering the facts as to what had occurred, Herman and her subordinate, Doris Diaz, made the decision to terminate Petitioner's employment. The basis of the termination was violation of the IGHL Code of Conduct, specifically the following language: "[D]ecisions on disciplinary action to be taken will be up to and including discharge. The following are examples of unacceptable behavior. . . . Confrontation with customers or co-workers." Petitioner acknowledged receipt and understanding of the Code of Conduct. Petitioner requested of Respondent a letter setting out the reason for his discharge. He was told that IGHL policy did not allow for a written statement; however, a letter was thereafter sent to him stating the basis for Respondent's action. The letter is unequivocal that the employer's reliance on confrontation with a co-worker was the basis for terminating Petitioner's employment. Petitioner presented no competent substantial evidence to support his claim of race, gender, or age discrimination as the basis for his termination from employment. Petitioner was promoted from DCC worker to nighttime ARM by IGHL. His promotion included a substantial salary increase, but not much change in his duties or responsibilities. He was, by his own admission, probably overpaid for the job he was performing. He claims that his termination from employment was for the purpose of eliminating this particular position. There is no evidence to support that contention.3 Petitioner claims retaliation may have occurred because of the fact that he pointed out McElvain's failure to stay within her prescribed food budget. There is no evidence that McElvain strayed from her budget. Rather, the evidence shows a failure on the part of IGHL's corporate offices to stay current when replenishing the WalMart card used for making purchases. The 90-day evaluation for Petitioner after his promotion to ARM is acceptable, but is considerably less laudatory in nature than McElvain's evaluation. It is clear Petitioner did have some minor issues relating to other employees, but that is often the case when someone is promoted from within an organization. If Petitioner is claiming retaliation based on his previous claim of discrimination against his employer, that claim is not supported by the evidence. As a matter of fact, Petitioner was promoted, not fired, as a result of the prior claim he filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of September, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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, 2008.
Findings Of Fact Petitioner, who has fifteen years experience in the restaurant business, was hired in October, 1984, by the Respondent, Jady's Inc., as general manager of its Baxter's restaurant in Sarasota. Since the operation was soon to be opened, Petitioner was advised that his duties included training employees, food service, and anything necessary to insure the proper and orderly operation of the restaurant. On April 2, 1985, less than a month after the restaurant was opened, Petitioner had his first accident, falling through the ceiling while checking a water heater in the attic, and striking himself on a step ladder. He injured his shoulder and neck in the fall. He did not lose any work time as a result of this incident though he was treated by a doctor and received medical compensation for the injury through Worker's Compensation. Since he continued working, however, he did not receive any payments for loss of wages. On August 21, 1985, he was again injured while working at the restaurant when he slipped and fell in the kitchen, hitting his head on the floor. He contends that his previous injury was aggravated by this accident and that he also injured his right leg. As a result of the accident, he saw several doctors including an orthopedic specialist. His injury was diagnosed as myositis, and he contends that though his leg has improved, he still has residual injuries which manifest themselves in pain radiating from the hip down the leg, and pain on the right side of his face, and in the jaw and shoulder. As a result of this second injury, he was awarded Worker's Compensation wage and medical payments and contends he still has some medical problems which tend to come and go. Petitioner continued to work after August 21, 1985, except for the initial three days he took off at the advice of his physician, and October 7, 1985, which he took off to help his wife with her liquor license. His actions were limited, however, in that he could not lift any substantial weight without pain and dizziness, but he was able to do the administrative work involved in managing the restaurant as well as serving and light food preparation. Nonetheless, on October 10, 1985, according to Petitioner, Mr. Schoenbaum terminated his employment stating at the time it was because he was injured. Petitioner contends that at the time of discharge, Mr. Schoenbaum threatened him with non- physical destruction of himself and his family through the contacts he had. When Mr. Oberoi asked for a leave of absence to recuperate and then return to work, according to Petitioner, Mr. Schoenbaum declined, stating he was injured and was not wanted at the restaurant. As a result of his injury, he received $270.00 per week as compensation for lost wages from the period October 7, 1985 through February 12, 1986. This was as opposed to his earnings of $500.00 per week plus benefits when he was discharged which, Mr. Oberoi contends, amounts to $3,000.00 in lost earnings for the period in question. After February 12, 1986, he received no more wage loss benefits. Petitioner claims that prior to his injury he was in generally good health admitting to a prior history of low back problems which occurred from four to five months before coming to work at Baxter's. He contends that this was not the injury he received while at work there. While he was working, he claims, he was paying for his own medical insurance but when he spoke with his company after the injury, he was advised that since the injuries took place at work, he should file for worker's compensation benefits instead. When Petitioner came back to work after the three day time off at the time of the second injury, he discussed with the Schoenbaums certain changes in the menu, and other matters which they wanted changed, but contends that at that time there was no discussion about the overall cleanliness of the restaurant or other discrepancies which they now claim support their termination of his services. He claims there was no discussion of his work performance at any time or any indication they were dissatisfied with his accomplishment of his duties. Mr. and Mrs. Schoenbaum, who are the main owners of Jady's, Inc., also have an extensive background in the restaurant business and claim this is the first discrimination complaint ever filed against them. The Schoenbaums decided, at the time they hired Petitioner, to put him in the restaurant business with the understanding he was to get a salary and a 10% equity position if the restaurant made money for fifteen months. The arrangement did not work out. As a result of what the Schoenbaum's consider Petitioner's poor management, the restaurant was losing money at a steady rate. They terminated his employment, reluctantly, because they did not want to run the restaurant themselves. The decision was not made frivolously. The decision to discharge Petitioner was made after an extended period of observation during which they determined, among other things, that Petitioner's daily cash reports for two months were all incorrect. As of October 30, 1986, the restaurant had lost over $100,000.00 and Mr. Oberoi was discharged because he had done a poor job in its operation, had demonstrated a lack of motivation, and appeared to be uninterested in what was going on. He was totally responsible for the operation and the Schoenbaums attribute the financial loss they sustained directly to his inadequate management and operational skills. When the Schoenbaums began to realize they would have to terminate Mr. Oberoi's services, they asked each of the opening managers to write down items they found when they came to work which should have been done the night before. There were many. In addition, the bank utilized by the restaurant had reported that charge slips were not being filled out properly. Sales appeared to be going down. Mr. Oberoi often did not come to work on time and closed the restaurant early, and waitresses were given keys to come in and open up without supervision when it was Petitioner's responsibility to be there. During the three days in August, 1985 that Petitioner was off after his second accident, Mrs. Schoenbaum inspected the facility and found it to be filthy. Food was not stored properly, the refrigerator was dirty, and other defects in operation were clearly obvious. When the Schoenbaums talked with Mr. Oberoi on his return, they relate, he admitted he was not performing properly. They counseled with him, pointing out where he needed to improve and put him on probation. Improvement was not, however, forthcoming. In light of all the continuing deficiencies in Petitioner's performance and considering the fact that the restaurant was losing money, the Schoenbaums decided the situation could not continue and on October 10, 1985, discharged Mr. Oberoi in the presence of Mr. Hershorin. Mr. Schoenbaum confirms Mrs. Schoenbaum's testimony. As he observed it, Petitioner's performance in the beginning was acceptable and they tried to work together as a team to overcome the problems inherent in the start up of a restaurant operation. As time went on, things did not get any better but consistent with his management style, Mr. Schoenbaum tried to allow Petitioner to manage the restaurant without over supervision because he felt Petitioner had the background to get the job done. According to Mr. Schoenbaum, cleanliness, food quality, and the serving of a reasonable product at a reasonable price are paramount considerations in the operation of a restaurant and under Petitioner's management, the restaurant was not meeting those goals. Mr. Schoenbaum began to feel that though Petitioner was trying, he was not succeeding in running a quality operation. From time to time, when Mr. Schoenbaum would come into the restaurant, he would see Petitioner sitting and talking with people rather than managing and supervising. As a result of his concern, Mr. Schoenbaum warned Mr. Oberoi of his dissatisfaction and gave him an ultimatum that the deficiencies must be corrected. Mr. Hershorin, part owner of the restaurant, also confirms the Schoenbaum's observations. Based on his observations and experience in the restaurant business, it was his opinion that Petitioner's operation was not good. Mrs. Schoenbaum asked him to go in and handle the restaurant for the three days Mr. Oberoi was gone in August, 1985. When he did, he found the food in the refrigerator smelled; there was accumulated residue on the racks; food had spoiled; kitchen equipment was not even superficially clean; there was residue on the floor; and in sum, the general housekeeping was poor. Mr. Hershorin was present when the Schoenbaums met with Petitioner to discuss his performance and how the operation could be improved. He felt the Schoenbaums wanted the discussions to be of a positive nature to help Petitioner improve. They told him what needed to be done and put him on probation for a period, and it was clear to Mr. Hershorin that Petitioner understood what was being said to him and his status. Unfortunately, nothing changed as a result of this counseling and ultimately the Schoenbaums had to terminate Petitioner. Petitioner denies any counseling prior to termination or any probationary period being imposed. He claims the Schoenbaums did not discuss his work performance with him at any time, nor did they discuss shortages, lack of proper paper work, erroneous deposits, failure to insure that charge clips were filled out properly, or that he was allegedly leaving equipment on over night. Mr. Oberoi emphatically contends nothing was said about his performance until after he filed his complaint. Both Mr. Schoenbaum and Mr. Hershorin deny knowing that Petitioner had filed a worker's compensation claim or that his discharge was as a result of his incapacitation subsequent to his injury. They contend, as does Mrs. Schoenbaum, and it is found, that Petitioner's injury had no bearing on his termination and his disability was not the cause thereof. Petitioner claims he was never considered disabled prior to coming to work at Baxter's and had never filed a Worker's Compensation claim prior to the ones resulting from his injuries there. A Worker's Compensation Order, introduced by Respondents, however, indicates that Petitioner was injured twice before, in 1983 and 1984, and suffered permanent injury. Admitting this on cross examination, Petitioner contends he was totally recovered at the time of the current injuries and that the worker's compensation form admitting to prior injury was signed at the suggestion of his attorney to facilitate settlement of a collateral lawsuit. Mr. Oberoi also appears to have placed substantial pressure on Mr. Brockway, another employee at the restaurant, to execute a false affidavit. Mr. Brockway claims Mr. Oberoi contacted him so often, he ultimately signed the affidavit merely to be left alone and during the week prior to the hearing, he was again contacted by Petitioner with another affidavit which would indicate that Petitioner was discharged because of his injury. Mr. Brockway declined to sign it. Though Petitioner contends now he is unemployed, he is the principal owner of a corporation which operates a restaurant at Sarasota Square Mall. Mr. Oberoi contends that the work there is done by his family and that he has no part in the operation. This is disputed by Mr. Hershorin who claims to have seen Petitioner behind the counter there on at least two occasions and working in the area on at least three other occasions. Further, when Mrs. Schoenbaum called out there prior to hearing, she was advised to talk with Petitioner who was totally in charge of the operation. Based on the above, Petitioner's credibility is suspect and considering the evidence as a whole, it is found that Petitioner's performance at Baxter's restaurant during the time he was manager there was, for the most part, unsatisfactory. It is that unsatisfactory performance which culminated in his discharge, not the fact that he was injured, filed a worker's compensation claim, or was disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against the Respondent. RECOMMENDED this 1st day of May, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1989. COPIES FURNISHED: Robert D. Turffs, Esquire 1444 First Street Sarasota, Florida 34236 Sue Schoenbaum Vice-President Jady's Inc. 4201 Deepwater Lane Tampa, Florida 33615 Donald A. Griffin Executive Director Florida Commission on Human Relations Bldg. F., Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel FCHR Bldg. F., Suite 240 325 John Knox Rd. Tallahassee, Florida 32399-1925 Margaret Agerton Clerk FCHR Bldg. F., Suite 140 325 John Knox Rd. Tallahassee, Florida 32399-1925
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed an act of employment discrimination by totally reducing the employment hours of the Petitioner, such that the Petitioner was constructively discharged and whether such action was on account of his race, in the manner proscribed by Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Lavon A. Baker, was employed by the Respondent at a convenience store which operated in Jackson County, Florida, at times pertinent hereto. He performed various jobs involving cooking, cleaning, cashier duties, checking and maintenance of inventory at the "Jr. Food Store" involved. His employment record is without blemish, having no disciplinary incidents on his record with that employer, the Respondent. The Petitioner's immediate supervisor and employment decision-maker was Dina C. Bonine, the manager of the store involved. The Respondent, Jr. Food Mart of America, Inc., is a corporation headquartered in Jackson, Mississippi, which owns and operates convenience stores in various locations, employing more than 15 employees. The Petitioner is a black man. He was employed at the Respondent's store until October 1992 with no difficulties with his employer. His work record was good and free of disciplinary incidents. Beginning in early October 1992, he began to have his hours of employment per week reduced in number. This became a problem for him because he was earning insufficient income to meet his monthly expenses. He discussed the possibility of obtaining a second job so that he could earn sufficient income, but his supervisor, Ms. Bonine, advised him that he had to work "at her convenience" and would risk termination if he took a second job. Upon his hours of employment at the Respondent's place of business being reduced to approximately 8-10 hours per week, he was forced to take a second job at the Pizza Hut. He began working at the Pizza Hut for 28 hours per week at the minimum wage rate of $4.65 per hour, beginning in March of 1993. Although his supervisor, Ms. Bonine, cautioned him against taking a second job at the risk of being terminated from his job with the Respondent, she allowed a white female employee, Becky Baxter, and a white male employee named "Bobby", who were more recently hired than the Petitioner, to get additional hours of employment, while the Petitioner's hours were being reduced. At the same time, she allowed these two white employees to work at a second job with another employer, as well. Both Ms. Baxter and "Bobby" had been discharged by the Respondent, or Ms. Bonine, in the past, but had been rehired by her and given preferential treatment, in terms of working hours and accommodation of a second job, which treatment was not accorded to the Petitioner. In fact, Ms. Baxter worked in a second job at the Pizza Hut at the same time the Petitioner did, but received the overtime hours formerly given to the Petitioner at the Respondent's place of employment, while the Petitioner's hours were cut to nothing. The Petitioner testified that "she was already at 40 hours and she just got more". These employees, hired since the Petitioner, got all the working hours they wanted from the Respondent and convenient working time schedules, as well, compared to the Petitioner's hours. Ultimately in April of 1993, the Petitioner's working hours were totally eliminated and therefore his employment was effectively terminated. Upon taking the second job at the Pizza Hut, his employer at that facility allowed him to schedule his hours at the Pizza Hut so that he could still obtain all of the working hours he needed at the Respondent's facility. Nevertheless, his hours were constantly reduced by Ms. Bonine to the point that, in April, he had no hours scheduled for several weeks, effectively resulting in his termination. Debra McDaniel is a home health aide and certified nursing assistant. She is a friend of the Petitioner, and when he lost his automobile due to his reduced working hours and reduced income, she often transported him to and from his job. She therefore was able to observe on several occasions the work schedule placed at the Respondent's facility. She observed, for several weeks at a time, that the Respondent had given the Petitioner no working hours. She testified that Ms. Bonine told the Petitioner that she would post a new schedule with his working hours on it, but that never occurred. This observation was made sometime in April of 1993. Ms. McDaniel's testimony thus corroborates that of the Petitioner. Up until the first of October of 1992, the Petitioner earned $160.00 per week at the Respondent's employment facility, without overtime hours calculated in that figure. There is no evidence of what he earned in terms of overtime hours. His employment hours at the Respondent's facility were reduced to 8 hours per week by March 1, 1993. At that point in time, he took the job at Pizza Hut at 28 hours per week at a rate of $4.25 per hour. He worked at that job at Pizza Hut at the rate of 28 hours per week until the end of November, 1993. He was out of employment and looking for work until December 18, 1993, when he became employed with "Seminole Outdoors", at the rate of $5.00 per hour for 32 hours per week. He remained with that employer at that rate until February 28, 1994, when he resigned to return to school full time. He is in a law enforcement education program at Chipola Junior College. The Respondent adduced no evidence in this proceeding and failed to appear. The notice of hearing was issued on April 11, 1994 and served on the Respondent at its address of record, as previously mentioned in the above Preliminary Statement.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner has established that he is a victim of employment discrimination in the form of constructive discharge, following discriminatory reduction of his hours of employment, and opportunity to hold non-conflicting outside employment, all on account of his race, and that he be reinstated in his position with the Respondent and awarded back pay in an amount reflective of the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of August, 1994. COPIES FURNISHED: Mr. Lavon A. Baker Post Office Box 1276 Sneads, FL 32460 Ms. Cheryl Little Administrative Assistant Jr. Food Mart of America, Inc. P.O. Box 3500 Jackson, MS 39207-3500 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue is whether Respondent, Pritesh, Inc., d/b/a IHOP 36-151 ("IHOP"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2011),1/ by discharging Petitioner from her employment in retaliation for her complaints regarding racial and religious discrimination in the workplace.
Findings Of Fact IHOP is an employer as that term is defined in subsection 760.02(7), Florida Statutes. IHOP is a restaurant in Leesburg. IHOP is owned by Pritesh Patel, who owns and operates a total of four International House of Pancakes stores in the Leesburg area through his corporation, Pritesh, Inc. Petitioner is a black female who is an observant Jew. Because of her religious beliefs, Petitioner does not work on the Sabbath, from sundown on Friday until sunset on Saturday. Petitioner was hired to work as a server at IHOP on March 19, 2012. She made it clear that she did not work on the Sabbath, and IHOP agreed to respect her religious beliefs. There was some difference in recollection as to the notice Petitioner gave to IHOP. Petitioner testified that she made it clear she could not work until sundown on Saturdays. The store manager, Brian Jackson, also recalled that Petitioner stated she could only work Saturday evenings. Mr. Patel testified that Petitioner said that she could work on Saturday "afternoon." Petitioner's version is credited as being more consistent with her stated beliefs, though there is no doubt that Mr. Patel was testifying honestly as to his recollection. Petitioner was the only black server working at IHOP at this time. Both Mr. Patel and Mr. Jackson credibly testified that IHOP has had many black servers through the years. Mr. Jackson noted that Petitioner only worked for IHOP for a period of two weeks and therefore was in no position to judge IHOP's minority hiring practices. Petitioner testified that assistant manager Hemanshu "Shu" Patel, a relative of the owner, created a hostile working environment for her from the time she started on March 19. She complained that Shu would alter the seating chart so that she would have fewer tables to cover, meaning a reduction in her tips. Petitioner also stated that Shu was disrespectful and rude, in a manner that caused her to believe there was a racial motivation behind his actions. Despite the fact that Shu was subordinate to Mr. Jackson, Petitioner believed that Shu was really in charge because he was a relative of Mr. Patel and therefore "untouchable" as an employee of IHOP. Petitioner's main complaint was that Shu, who was in charge of work schedules for the restaurant, scheduled her to work on Saturdays. Petitioner testified that on the first Saturday of her employment, March 24, Shu called her to come into work at noon. She replied that she could not come in until after sundown. This problem was apparently worked out to Petitioner's satisfaction, and she was not required to report to work on Saturday afternoon. However, when Shu posted the next week's schedule on the following Tuesday, Petitioner saw that she had been scheduled to work on the morning of Saturday, March 31. Petitioner complained. Both Mr. Patel and Mr. Jackson testified that Shu had merely made an error in scheduling that was rectified as soon as Petitioner notified them of the problem. Petitioner did not deny that the problem was resolved mid-week, well before any Sabbath conflict could arise. Mr. Patel testified that he wanted Petitioner to work from 4 p.m. until midnight on Saturday, March 31, so that she would not lose a day's work due to the scheduling error. Shu phoned Petitioner early on Saturday afternoon and asked her to come in. Petitioner told Shu that she could not come in until 8 p.m. Mr. Patel testified that he did not need someone to work a four-hour shift, and that Petitioner was told not to come in. As a further reason for declining to work on Saturday evening, Petitioner testified that she had only been trained for the morning shift. Mr. Jackson testified that the only distinction between the dayshift and the nightshift is that the latter is less busy. All servers are trained for the morning shift. Mr. Jackson stated that, once trained for the morning shift, a server would find the night shift "a piece of cake." Petitioner's reason for not working in the evening was not credible in this respect. Mr. Patel testified that he had no problem with Petitioner's not working on that Saturday, provided that she understood she was going lose a day. Mr. Patel stated that from his point of view the problems began when Petitioner insisted that he give her weekday hours to make up for the lost Saturday hours. Mr. Patel declined to cut another employee's hours for Petitioner. Petitioner came in to work on the morning of Sunday, April 1. Sunday morning is a busy time for IHOP. According to head server Bernadine Hengst, Petitioner stood near her at the register and voiced her complaints about Shu, who was working in the kitchen. Shu heard Petitioner and stepped into the dining room, asking her, "You got something to say to me?" Petitioner and Shu became loud, and their argument was moved outside for fear of disturbing a restaurant full of people. Petitioner finished her shift then went home and composed a letter to Mr. Patel. She made copies of the letter for every employee at IHOP. Ms. Hengst was the first to see the letter. She phoned Mr. Jackson at home to tell him about it, and Mr. Jackson phoned Mr. Patel. The letter read as follows: On March 19, 2012, I was hired to work as a server. I am a professional, pleasant, respectful, prompt and dutiful individual. As the only African-American server, it is imperative that you know since I have arrived at IHOP, I have faced fierce blatant hostility from a manager ("Shu") and co- workers ("C.C., Misti and Cherish"). I feel Shu has deliberately created a divisive and hostile working environment. It is my understanding Shu is a family member yet his behavior is definitely bad for business. On two separate occasions, Shu altered the seating chart that Brian originally created and took two tables from me. He lacks proficient management skills and is totally unprofessional, disrespectful and rude. On Sunday, April 1, 2012, Shu spoke to me in a loud, impolite manner in front of staff and customers. Shu communicated in a very bellicose fashion and for a moment, it felt as though he would physically attack me. You must take it serious that Shu's conduct is detrimental to your business. When Shu hired me I made it clear that I am Jewish and do not work on the Sabbath ("Saturday"). Nevertheless, Shu called me to come into work on Saturday about noon; I told him I would come in after the Sabbath at 7:00 p.m. The following week I was scheduled to work a Saturday, which in turn caused me to lose a day of work. Also on April 1, 2012, Shu assigned me only two booths for the whole day; when I spoke up about it he threatened to take another booth from me. This type of attitude and his unfair behavior cannot be tolerated in the United States of America in 2012. Shu is outwardly mean, discriminative, and racist towards me. He acts like a tyrant, a bully and he feels he is untouchable. On Sunday, April 1, I was only assigned two booths while my co-workers had four to six tables. This was unfair seating arrangements. At the end of the day, Bernie [Hengst] told all the servers to tip out the busboy, yet I did not because I was unjustly treated by only being assigned two tables. This was one-sided and insulting. I am an exceptional waitress and I depend on this job to pay my bills. During my first week, I was scheduled to work 36.10 hours and this week I was only given approximately 23.0 hours. Everyone should be treated fairly and equally. I ask that you continue to give me a full schedule each week. This letter officially informs you of the battles I have dealt with in your establishment and I have not worked here for one whole month. All Americans have the right to work without being harassed. I urge you to intervene and equitably resolve this issue. Ms. Hengst testified that Shu is a loud person who "talks with his hands," but she saw nothing that gave her the impression that Shu would "physically attack" Petitioner. She did not detect that Shu treated Petitioner any differently than he treated other servers. Ms. Hengst saw Petitioner as an equal participant in the April 1 confrontation. As to Petitioner's complaint about the number of tables to which she was assigned, Mr. Jackson testified that servers are always trained on two booths and then moved to four booths after training is completed. He stated that Petitioner was doing a "terrible" job working four booths, which caused Shu to move her down to two. Mr. Jackson stated that it is counterproductive to overwhelm a new server, and that the server must demonstrate the ability to perform the basics before taking on more tables. On the morning of April 2, after reading Petitioner's letter, Mr. Patel went to the IHOP and sat down for a meeting with Petitioner in hopes of addressing her complaints. Mr. Patel testified that the first thing Petitioner asked him was, "Do you know how many black employees you have?" Though he had been willing to discuss Petitioner's grievances concerning scheduling, Mr. Patel decided to fire Petitioner when she started "threatening us" based on claims of "black and white discriminating." He decided to fire Petitioner for the future of his business, because he did not want the problems associated with allegations of discrimination. Mr. Jackson was also at the April 2 meeting, and testified that Petitioner claimed she was being singled out because of her race. Based on all the testimony, it is found that Petitioner had little basis for claiming that IHOP was discriminating against her based on her race or religion during the actual course of her job. She was mistakenly scheduled to work on Saturday, but was not required to come in to the store once she made management aware of the error. She did lose one shift's worth of work for March 31, but that was partly due to her declining to work the evening shift. The evidence established that Shu Patel was loud, somewhat hotheaded, and perhaps not the ideal choice for managing a busy restaurant, but did not establish that he singled out Petitioner for particular abuse because of her race or religion. The evidence established that Petitioner's poor job performance was the cause of at least some of the friction between her and IHOP management. However, Mr. Patel's own testimony established that he dismissed Petitioner in direct retaliation for her complaint of discriminatory employment practices. IHOP offered no legitimate, nondiscriminatory reason for Petitioner's dismissal.
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 Pritesh, Inc., d/b/a IHOP 36- 151 committed an act of unlawful retaliation against Petitioner. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner. DONE AND ENTERED this 5th day of March, 2013, 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 5th day of March, 2013.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
