The Issue The issue is whether the Division of Administrative Hearings has subject matter jurisdiction over the issues raised in Petitioner's Charge of Discrimination.
Findings Of Fact Petitioner's discrimination statement dated February 18, 1997, states as follows: I believe that I was discriminated against when the sheriff's department used illegally obtained information from my employer and a relative of mine working in the department, to give negative references and information to the general public. Petitioner has never applied for employment or been employed by the Suwannee County Sheriff or his office. Petitioner's claim apparently arises out of a family dispute between the Petitioner, her mother, Lotis Musgrove, and her sister, Eyvonne M. Roberson, who works for the Suwannee County Sheriff's Department. The family dispute is not related to the Petitioner's employment with the Suwannee County Sheriff.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss Petitioner's Petition for Relief. DONE AND ENTERED this 20th day of May, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1998. COPIES FURNISHED: Linda G. Bond, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Charmin Christensen, Director Suwannee County Personnel 200 South Ohio Avenue Live Oak, Florida 32060 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2007.
The Issue The issues to be resolved in this proceeding are whether Petitioner was terminated from his employment with Respondent because of his race, his alleged disability, and in alleged retaliation for his attempt to file a workers' compensation claim in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. Petitioner also has been diagnosed with obsessive/compulsive disorder and major depression. On March 21, 1997, Petitioner began his employment with Florida Department of Corrections as a substance abuse counselor at Lancaster Correctional Institution. Petitioner's employment status was in career service, probationary status for six months from the date of his employment. A probationary status employee can be terminated without cause. Petitioner's employment as a counselor required him to be present at the institution a reasonable amount of time in order to perform his counseling duties. From March 21, 1997 through September 2, 1997, Petitioner failed to report for work 39 full workdays out of a possible 115 workdays. In addition, Petitioner had five other workdays that he only worked part of the day, with a total of 16 hours of leave used over those days. Sixteen hours is the equivalent of two full workdays missed by Respondent. As a result, Petitioner was absent from work approximately 35 percent of the time. Thirty-five percent absence rate was excessive based on Petitioner's job duties. Most of the leave was without pay because Petitioner had not accumulated enough sick or annual leave to cover his absences. The leave was taken for various reasons, but a large part of the leave was taken when Petitioner was hospitalized due to his mental condition. Petitioner's doctor released him from his hospitalization on August 8, 1997; however, Petitioner did not return to work until August 20, 1997. The last pay period ran from Friday, August 22, 1997 to Thursday, September 4, 1997. Petitioner only worked 20 hours out of 40 the first week and two hours out of 40 the second week. Around September 1, 1997, Petitioner went to the personnel office to inquire about filing a workers' compensation claim based on his disability. The staff person he spoke to did not know the procedure for filing a workers' compensation claim. She told Petitioner she would find out the procedure and asked him to return the next day. Other than Petitioner's speculation about the events following his initial inquiry about filing a workers' compensation claim, other material evidence regarding the events following his initial inquiry and Respondent's response thereto was submitted into evidence. The evidence is insufficient to draw any conclusions of a factual or legal nature regarding Petitioner's workers' compensation claim and his termination. Petitioner was terminated on September 2, 1997, the day following his initial inquiry about workers' compensation. Petitioner received his letter of termination on September 2, 1997. Petitioner was a probationary status employee when he was terminated. Eventually, Petitioner filed a workers' compensation claim. The claim was denied by the Florida Department of Labor and Employment Security. In 1997, L.D. "Pete" Turner was the warden at Lancaster Correctional Institution. As warden, Mr. Turner supervised Petitioner. Mr. Turner made the decision to terminate Petitioner due to his excessive absences. Mr. Turner did not terminate Petitioner based on Petitioner's race, his alleged disability, or because of Petitioner's attempt to file a workers' compensation claim. Petitioner was needed at work and he was not there a sufficient amount of time to fulfill his job duties. In fact, there was no competent evidence that there was any connection between Petitioner's termination and/or his race, disability, or desire to file a workers' compensation claim. Petitioner alleged that two employees at the institution were excessively absent but were not terminated. The employees were Doris Jones and Victoria Englehart. Both individuals were career service employees with permanent status. They were not probationary status employees. Doris Jones is an African-American female. Victoria Englehart is a white female. No other evidence was produced at the hearing regarding these two employees, their attendance records, job duties or anything else of a comparative nature. Clearly, the evidence is insufficient to make any comparison between these two employees and Petitioner's employment and termination.
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 the Petition for Relief. DONE AND ENTERED this 6th day of June, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of June, 2001. COPIES FURNISHED: Otis Ware Post Office Box 2155 Trenton, Florida 32693 William J. Thurber, IV, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 17, 2004.
Findings Of Fact Petitioner, Linda Marchinko, was employed by the Witteman Company, Inc., from 1966 until April 2003. The Witteman Company, Inc. (hereinafter "Inc.") was a division of the Dover Corporation. While employed by Inc., Petitioner held the position of traffic manager. The most recent description of the duties of the position of traffic manager reads as follows: Responsible for, but not limited to, traffic managerial duties, coordinate and arrange for all product shipments, required documentation, customer interaction, and providing back-up support as required to others within the Company. Work with minimum supervision, produce quality, complete and accurate work and be an active and positive participant on teams and committees to which assigned. In February 2003, Cryogenic Industries made an asset purchase of Inc. and established Witteman, LLC (hereinafter LLC). LLC engineers and sells carbon dioxide, recovery, and production equipment to soft drink and brewing companies. Whereas Inc. had a maximum of 110 employees, LLC was established with only 17 employees, as many departments such as purchasing, traffic, and accounting were eliminated or "farmed out." At the time of the asset purchase, all employees of Inc. were terminated due to the sale of the assets of Inc. Petitioner was terminated from employment with Inc. effective April 8, 2003. She signed a Severance Agreement and Waiver and Release of Claims, releasing Inc. from all claims, including any related to the Age Discrimination and Employment Act. The position of traffic manager has not and does not exist at LLC. Petitioner was not hired by LLC. Petitioner has never been employed by LLC and, therefore, was not terminated by LLC. A few employees of Inc. were hired by LLC. Petitioner was not one of them. Cara Brammer is one of the employees of Inc. who was hired by LLC. Her position is Comptroller. Petitioner contends that regardless of Ms. Brammer's title, Ms. Brammer performs the same functions that Petitioner used to perform for Inc. Petitioner believes that Ms. Brammer was hired by LLC because she is younger than Petitioner. At the time Ms. Brammer was hired by LLC, she was approximately 39 years old and Petitioner was 55 years old. Ms. Brammer's duties as Comptroller include accounts payable, cost accounting, and general ledger work. According to Ms. Brammer, the traffic manager duties previously performed by Petitioner were separated between two of LLC's sister companies in California, which handle all of the major equipment, including manufacturing and shipping for LLC. William Geiger is General Manager of LLC. According to Mr. Geiger, the manufacturing of the product was shifted to two divisions located in California. The primary shipping of the company's product was also shifted to California. This is consistent with Ms. Brammer's testimony. According to Ms. Brammer, a small portion of the shipping duties that had initially been sent to California are now handled by LLC. She estimates that she spends only four to five hours a week on these traffic duties, that Mr. Geiger handles some of these duties, and that "quite a bit" of these traffic duties have been farmed out to a company called Freight Forwarder. LLC employs people in their thirties, forties, fifties, and sixties. There is no competent evidence that LLC used age as a criterion in its determination of who would and who would not be hired for the newly formed company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2005.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”) on or about September 9, 2014, and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and probative facts: TESTIMONY OF PETITIONER, CARYL ZOOK Petitioner, a 61-year-old female born in 1954, worked as a private chef for Mr. Friedkin, owner of Respondent. She began in 2007 and was an “at will” employee, there being no written employment contract. Her duties included providing dinners and other meals at Mr. Friedkin’s residence, catering or assisting him with some events, and overseeing some of the other staff members at his residence. Petitioner was in an auto accident in 2011 and suffered neck injuries. Petitioner required physical therapy, acupuncture, steroid injections, and several x-rays. After Petitioner was terminated from Respondent in September 2013, she underwent surgery to remove several bad vertebrae from her neck area. Due to her neck injury and pain, Petitioner testified that she needed to park close to Mr. Friedkin’s house to carry groceries as a reasonable accommodation. Other than the inference drawn from this scant evidence, there was little, if any, direct or circumstantial evidence presented to prove that Respondent had knowledge of a qualifying disability by Petitioner.1/ Petitioner characterized Mr. Friedkin’s behavior over the years as insulting and abusive, and she endured it for many years. There was an arrangement between Petitioner and Friedkin for him to purchase a home for her to live in. She would repair or remodel the home, and at some point, he would transfer the mortgage and home to her.2/ For the Yom Kippur holiday, Mr. Friedkin contacted Petitioner and instructed her to prepare a dinner for his family and to have it ready at 3:00 p.m. that day. Typically, meals were prepared by Petitioner at Mr. Friedkin’s home. However, this one was prepared at Petitioner’s home because, as she testified, it “needed to be brined” in her refrigerator in advance. Petitioner was admittedly running late and did not have the meal prepared by 3:00 p.m. Mr. Friedkin called her while she was driving to his house but she did not answer the phone. When she arrived at his house, Mr. Friedkin was in his vehicle blocking the driveway. After she parked on the street, Mr. Friedkin got out of his vehicle and began ranting and raving at her, accusing her of being late. He was very upset. He continued yelling and told her that, “Next week you better start looking for a new job.” Petitioner went into the house and left the food in the refrigerator. It was undisputed that the food (a turkey breast) was not given to Mr. Friedkin outside the home because it was not carved or ready for consumption. TESTIMONY OF SHEREE FREIDKIN Mr. Friedkin’s wife testified that Mr. Friedkin had made it clear to Petitioner that he wanted her to prepare a turkey meal and that they would pick it up at 3:00 p.m. at the residence. When she and her husband arrived at their home at 3:00 p.m., Petitioner was not there. They went inside, looked in the refrigerator, and saw that the food was not there. They called Petitioner on her cell phone but she did not answer. They waited for some period of time for her, all the while getting very frustrated and agitated.3/ After waiting more than 30 minutes for Petitioner to arrive, they decided to go to Whole Foods to buy a turkey meal at around 3:40 p.m. On their way, Petitioner phoned them. She said she would be at the house soon, and so, they decided to drive back and meet her. After they arrived back at their residence they had to continue to wait for her to arrive. She finally arrived, sometime after 3:40 p.m., and got out of her vehicle eventually. (Apparently, Petitioner waited in her car for some period of time.) When she got out, Petitioner was in shorts, a sloppy shirt, and her hair was in curlers. Mr. and Mrs. Friedkin found this inappropriate, particularly since Petitioner usually wore an apron and dressed more appropriately in their presence. Mr. Friedkin was very upset and demanded that she give him the food because they were running late to their family function. Petitioner refused, claiming the turkey needed to be sliced. Mr. Friedkin was very angry and used several unnecessary expletives during the course of his conversation with Petitioner. Mr. Friedkin told her something like, “you’re fired” and “don’t show up Monday for work.” Mrs. Friedkin overheard no age, disability, or retaliation-related comments during this heated exchange. TESTIMONY OF MONTE FRIEDKIN He confirmed that Petitioner was his chef and also did some assorted chores and supervision around his house. He directed Petitioner to make a meal and have it ready for them to pick up at his residence by 3:00 p.m. on the day in question. He testified that Petitioner always cooked any food for his family at his residence. When they arrived around 3:00 p.m. at the house, Petitioner was not there, and there was no food. He tried to call her and had to leave a message. They decided to go to Whole Foods to buy the meal. They departed for Whole Foods around 3:40 p.m. His description of the event was consistent with his wife’s testimony. In addition to the delay caused by Petitioner, Mr. Friedkin testified that it was important to him that she was presentable at all times around him and his family. During the confrontation in the driveway, he terminated her employment. He testified that he had experienced some other performance issues with her over the months preceding this event and that she had begun to respond to questions and directives from him in increasingly insubordinate ways. As far as her termination was concerned, he unequivocally denied that her age, a disability, or retaliation was ever considered or motivated his decision. He admitted that Petitioner told him that she had a car accident in one of their vehicles sometime in 2011. However, she continued to work for him for approximately two years after the accident without incident. She did complain to him, at some point, of some neck pain. He denied that Petitioner ever gave him any medical documents verifying or stating that she was disabled. On cross-examination by Petitioner, Mr. Friedkin elaborated that, during the months preceding the food incident, she had become more and more insubordinate, and there was a growing problem with her not following instructions he gave her. In his words, the incident at his residence involving the turkey dinner was the proverbial “straw that broke the camel’s back.” On redirect, Mr. Friedkin denied ever considering any disability and said he did not even know she was “disabled.”4/ TESTIMONY OF ROSARIO DIAZ Another witness, Mrs. Diaz, testified that Mr. and Mrs. Friedkin arrived at the residence at around 3:00 p.m. and came into her office. They wanted to know whether or not Petitioner was there with the food, and whether or not she had called. Diaz told him that she was not there and did not call. Mr. and Mrs. Friedkin then departed. Approximately 30 minutes later, Petitioner came into her office upset and said that she could not believe what had just happened and that Mr. Friedkin had just fired her. Ms. Diaz commented to her that maybe they were upset because she was late. Mrs. Diaz had worked for Mr. Friedkin for nearly 30 years. She interacted with Petitioner at the residence frequently. She testified that Petitioner never complained to her about age, disability, or other discriminatory remarks or comments by Mr. Friedkin. She also testified that she never overheard any comments by Mr. Friedkin about Petitioner’s age or disability, or how either may have affected Petitioner’s work performance. At Petitioner’s request, recorded portions of an unemployment compensation hearing, conducted by an appeals referee from the Florida Department of Economic Opportunity (DEO), were played. Petitioner represented that the purpose was to show that Mr. Friedkin had made several statements during that hearing that were inconsistent with his present testimony. The DEO hearing was to determine whether or not Petitioner was entitled to unemployment compensation benefits. DEO ruled in Petitioner’s favor and found that she was not disqualified from receiving benefits and that no “misconduct” occurred on the job as a result of the Yom Kippur meal incident.5/ The undersigned finds that Mr. Friedkin did not make any materially inconsistent statements during the DEO hearing bearing upon his credibility as a witnesses in this case. There was insufficient proof offered by Petitioner to show that Respondent’s proffered explanation for her termination (poor work performance) was not true, or was only a pretext for discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent’s favor. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S Robert L. Kilbride 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 27th day of January, 2016.
The Issue Whether or not Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner and received by the Florida Commission on Human Relations on November 20, 2001.
Findings Of Fact Based on the testimony of Petitioner and the evidence he presented, the following findings of fact are made: Petitioner was employed by Respondent in approximately 1990. Then or shortly thereafter he became a houseman at the Respondent's Grand Floridian Resort Hotel. His assigned duties included some strenuous lifting and other strenuous physical activity. In 1995, Petitioner seriously injured his lower back and one hand in an off-the-job incident involving his jumping from the second story of his apartment to avoid a fire in the apartment. As a result, Respondent gave him a leave of absence for about five months from his employment. After returning to work, in early 1996 Petitioner incurred what he contended was a work-related injury to his lower back. A medical record introduced by Petitioner, casts doubt on the extent to which that injury contributed to the condition from which he thereafter suffered and which interfered with and ultimately ended his ability to work. Petitioner had major back surgery in 1996. He consequently received and took additional leave from work. Petitioner testified on several occasions that at no time after the 1995 injury was he able to perform the strenuous aspects of the assigned duties of his position, houseman. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., Petitioner is unable to perform the assigned duties of a houseman. Petitioner was placed on light duty for a period of time. Petitioner was sent to a department of Respondent called "Re-Casting" in an effort to place him in duties he could perform. As a result of his initial contact with Re-Casting, he was transferred from the Grand Floridian Resort Hotel to the Contemporary Resort Hotel, but he was unable to perform his assigned duties and accordingly was transferred back to the Grand Floridian Resort Hotel. The transfer and return took place in March and April 1997. Petitioner subsequently returned to Re-Casting, and took a test to determine his qualifications for an open position as a cashier. Petitioner failed the test. Petitioner last worked for Respondent in May 1997. Petitioner has not held any employment since then, and he testified that he has not applied for employment since then. He admits that the reason for not having held any employment and not applying for it is his physical inability to work. Petitioner testified unequivocally that he has, since May 1997, been unable to do any kind of work. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., that since May 1997, Petitioner has been unable to do any kind of work. Petitioner has applied for disability benefits with the Social Security Administration. His disability claim indicates a continuing disability on his part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations find that Petitioner, Thelemaque Coleus, has failed to present a prima facie case of employment discrimination under the FCRA, and that, accordingly, the case is dismissed with prejudice. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 28th day of February, 2002. COPIES FURNISHED: Thelemaque Coleus Post Office Box 550776 Orlando, Florida 32855 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Charles Robinson Fawsett, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Christie Sutherland Walt Disney World Post Office Box 10000 Lake Buena Vista, Florida 32830 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent, as a covered employer under the Florida Civil Rights Act, Sections 760.01 through , Florida Statutes (2008),1 committed an unlawful employment practice against Petitioner.
Findings Of Fact The Parties Respondent is a constitutional officer and employer subject to the jurisdiction of the Florida Civil Rights Act. On or about July 2, 2001, Respondent, upon the recommendation of Tom Kay, then director of Respondent's Information Technology ("IT") Department, hired Petitioner as a desktop support analyst in the IT Department. The desktop support analyst position, like all positions with Respondent, is an at-will position. Petitioner was 64 years of age when he was hired by Respondent. During his initial years of employment with Respondent, until about late 2005, Petitioner reported to and was supervised by Mr. Kay. After Mr. Kay resigned in November or December 2005, Petitioner reported to Greg Brock, the IT director. Throughout his employment as an IT desktop support analyst, Petitioner was knowledgeable regarding computer applications and his employer's policies regarding use of computers. The essential functions of the desktop analyst position included adhering to and following the principles of the Clerk's Office, and complying with and supporting the mission of the Clerk's Office and the goals and objectives of the IT Department. The Policies and Guidelines Respondent established detailed Information Security Policy Guidelines regarding the use of network resources. Section 5.6 of the Security Guidelines prohibits employees from using network resources for "obscene or suggestive messages or offensive graphical images." Additionally, Section 5.7 of the Guidelines prohibits employees from deliberately downloading or uploading certain materials, including materials of a "sexually explicit nature" or "material which adversely affects the employee's or user's ability to do his or her job or . . . the [Clerk's] office's ability to carry out its assigned mission." Respondent developed and approved a Personnel Handbook which governs, among other matters, employee use of various types of equipment. Section 1.16 addresses the "Care and Use of Equipment," including computers, Internet access and email, which are the property of the Clerk's Office. The policy prohibits employees from using those computers for personal purposes and, specifically, prohibits the use of such equipment in ways "that may be disruptive, offensive, or harmful to morale." Section 1.16 further provides that Respondent's objective with regard to this policy is "to maintain a workplace free from harassment and sensitive to the diversity of its employees." IT Team Building Exercises While IT director, Mr. Kay instituted sports-based office games for team-building. Mr. Kay believed that these activities would boost morale, promote camaraderie, and facilitate communication among staff in the office. Mr. Kay considered the team-building activities to be an effective tool in leading a group of IT people, who typically are introverted by nature, prone to going to their "corners," and not interacting very much. JeanMarie Walsh, then assistant to Mr. Kay, coordinated some of the team-building activities, including the fantasy football game. While serving in that capacity, Ms. Walsh prepared football pool ballots at lunchtime on Friday for Monday morning bragging rights and temporary use of a team hat. She also occasionally used the office computer for email reminders and did so at the direction of Mr. Kay, believing it was not inconsistent with the Clerk's Office policies. The sports "picks" were done primarily during off-duty times and involved only incidental (five to ten minutes a day) use of staff time or the Clerk's Office equipment. This incidental use of equipment in connection with authorized team-building activities did not constitute unauthorized personal use of Respondent's equipment. Mr. Kay opined that the team building activities and use of staff and equipment in connection with those activities were within his rights as IT director. The Chief Deputy Clerk, Janet Cantees ("Chief Deputy Cantees"), knew that the IT Department employees participated in the sports-based team-building exercises initiated and implemented by Mr. Kay. Furthermore, at no time were these team-building activities proscribed by the employer. Respondent was generally aware of the team-building exercises in the IT Department and cautioned Mr. Kay to make sure no money was involved in the activities. She also advised him that employee participation in the team-building exercises was to be on a purely voluntary basis. In accordance with Respondent's instructions, no money was exchanged in regard to these sports team-building activities, and no IT employee was required to participate in the sports activities. The team-building sports activities in the IT Department concluded prior to July 2007. The use of team-building exercises is not unique to the IT Department, but is used with other employees in the Clerk's Office. For example, Chief Deputy Cantees had developed and used other team-building exercises for managers and staff who worked in different locations in the county. Some IT employees also participated in a "Clerk Shirt Everyday" activity, which was to encourage employees to wear their official "clerk shirts." The person who wore a "clerk shirt" that was a color not worn by anyone else that day was the winner of the activity. The winner was given one or two dollars by each participating employee to buy donuts the next day for the work group. Policy Violation Related to Use of Computers In or about early July 2007, Ms. Walsh, an employee in the IT Department telephoned Petitioner from her office. After he did not answer his phone, Ms. Walsh went to Petitioner's work area where she observed him on the computer in the Miami Hurricane football chat rooms. Ms. Walsh then reported to IT Director Brock that Petitioner was not answering his phone and told him what she had observed. On or about July 5, 2007, after Ms. Walsh reported seeing Petitioner in the Miami Hurricane chat rooms, Mr. Brock had Petitioner come to his office. Mr. Brock then told Petitioner that he should not be visiting what Brock believed to be the Miami Hurricanes football web chat rooms on Respondent's computer. During this meeting, Petitioner denied that he had visited such chat room as had been reported. On or about July 25, 2007, while in the area in which Petitioner worked, Ms. Walsh observed Petitioner at his computer. At that time, Ms. Walsh saw an inappropriate image on Petitioner's 24-inch computer screen. The inappropriate image was in clear view of Ms. Walsh and any other employee present in the adjacent working area. When Ms. Walsh saw the inappropriate image, she was concerned that a female vendor working nearby might be exposed to the explicit image. Ms. Walsh was embarrassed and shocked by the image she saw on Petitioner's computer screen and, thus, said nothing to Petitioner. Instead, Ms. Walsh immediately reported what she had witnessed to Mr. Brock. When Ms. Walsh initially told Mr. Brock about the image she had witnessed on Petitioner's computer screen, she described it as "offensive" to "a woman." During their brief conversation about the image on Petitioner's screen, Ms. Walsh was uncomfortable and embarrassed talking about the image. As a result, neither Mr. Brock, nor Ms. Walsh discussed the image in any detail other than confirming it was of a sexual nature. On July 25, 2007, after Ms. Walsh complained about the inappropriate image on Petitioner's computer screen, Mr. Brock conducted an inspection of Petitioner's computer. As a result of that inspection, Mr. Brock found on the hard drive two offensive photos, referenced as "Jugsy.jpg" and "cheappussy.jpg." The "Jugsy.jpg" photo found in Petitioner's computer depicts a young woman, mouth open, clad in a bra or bikini top, clutching her breasts, most of which were exposed, and pushing them together. The "cheappussy.jpg" photo found in Petitioner's computer depicts a man holding or dangling a hairless cat, which appears to be dead, in the air by its head. The offensive photos were found among other photos depicting Petitioner and his friends, and/or acquaintances of his, engaged in social or sports activities, including the University of Miami Hurricane events. The offensive photos found by Mr. Brock were located in a place on Petitioner's computer associated with his user name/login and were copied to the computer into Petitioner's profile or personal directory. Furthermore, based on Mr. Brock's inspection, there was no indication that the offensive pictures had been tampered with or modified by anyone else. At all times relevant hereto, there were ten or eleven employees in the IT Department, all of whom had administrative passwords that allowed them to access any of the Clerk's Office computers. The IT employees needed this access in order to perform their authorized job responsibilities. Because the IT employees had access to all computers, it is possible that any IT employee could have accessed Petitioner's computer. However, there is no evidence that this ever occurred. At all times relevant hereto, Mr. Brock had the experience and expertise to run a report of computer activity and to conduct a forensic analysis of Petitioner's computer to determine the history of the images. However, based on the findings of Mr. Brock's initial investigation of Petitioner's computer, he determined that such analysis or report was not necessary. On July 26, 2007, Mr. Brock showed Ms. Walsh the images he found saved in Petitioner's computer. At that time, Ms. Walsh identified the picture labeled "Jugsy.jpg" as the offensive image she had seen on Petitioner's computer. At this proceeding, Ms. Walsh testified that the image she saw on Petitioner's computer screen in July 2007 was a topless female in partially unzipped jean shorts. Undoubtedly, there is a difference in the image Ms. Walsh described in her testimony, which was two years after the incident, and the "Jugsy.jpg" photo she identified the day after she saw the image. This difference or discrepancy may be attributed to several factors including the following: (1) the lapse of time, two years, between Ms. Walsh's seeing the image and testifying at this proceeding; (2) the brief time that Ms. Walsh actually saw the image on Petitioner's screen; and/or (3) the brief time she looked at the "Jugsy.jpg" photo when it was shown to her by Mr. Brock. Notwithstanding the foregoing difference in Ms. Walsh's description of the image she saw on Petitioner's computer screen and the photo she identified as that image, Ms. Walsh's testimony that she saw an offensive image of a woman on Petitioner's computer screen is found to be credible. Significantly, Ms. Walsh's complaint led to an investigation, which found that there were offensive photos stored in Petitioner's computer (the one provided to him by the Clerk's Office). Decision to Terminate Petitioner's Employment In personnel matters regarding employment termination, the process begins with the unit manager or director discussing and reviewing the situation with Edith Peacher, manager of Human Resources ("HR"). After the matter is reviewed, the director or manager typically makes a recommendation in consultation with HR Manager Peacher. That recommendation is then conveyed to Chief Deputy Cantees, a key decision maker, who reviews the matter and then communicates her decision/recommendation to Respondent. Ultimately, Respondent has "veto authority" over the recommendation and/or decision of the chief deputy clerk. Consistent with Respondent's personnel practices, after Ms. Walsh identified the picture that she believed she saw on Petitioner's computer screen, Mr. Brock conferred with the HR manager. During the meeting with HR Manager Peacher, Mr. Brock advised her of Ms. Walsh's complaint, his investigation, and the photos he had retrieved from Petitioner's computer. Mr. Brock also told HR Manager Peacher that a few weeks before, he had spoken to Petitioner about using his computer to go to chat rooms. HR Manager Peacher, with input from Mr. Brock, drafted a Termination Notice dated July 26, 2007, for violations of the Clerk's Office's policies, procedures and professional conduct and standards. HR Manager Peacher then recommended to Chief Deputy Cantees that Petitioner's employment be involuntarily dismissed from the Clerk's employ. The July 26, 2007, Notice of Termination cited the prior disciplinary action; the July 5, 2007 verbal counseling; and references the two photos/images described in paragraphs 24 and 25 as deliberate and inappropriate use by an IT employee of the Clerk's Office computer equipment, justifying termination of employment. Section 4.02 of the Clerk's Personnel Handbook provides that "[e]mployment with the Clerk . . . is on at will basis," but states that "the Clerk may utilize progressive discipline in an effort to work with the employee." Under this provision, the option of using progressive discipline is discretionary, not mandatory. In the instant case, HR Manager Peacher believed that the display of offensive images on Petitioner's computer screen was an "egregious" situation and one which warranted immediate termination. On July 26, 2007, Mr. Brock and HR Manager Peacher met with Petitioner and reviewed the Notice of Termination and the pending recommendation for dismissal with Petitioner. When confronted with the allegation regarding the offensive images found in his computer, Petitioner stated "matter of factly" that someone "may" have placed the photos on his computer. However, he offered no reason for his implication that someone else "may" have tampered with his computer. Nonetheless, HR Manager Peacher told Petitioner that Respondent could investigate and find out if someone else had placed the images in his computer, but Petitioner did not request further investigation. At the July 26, 2007, meeting, Petitioner signed the Notice of Termination and indicated that he "read the Notice but did not agree with it in any way, shape or form." HR Manager Peacher conveyed to Chief Deputy Cantees the substance of the meeting with Petitioner and her belief that no errors of fact had occurred. After listening to HR Manager Peacher's presentation of the facts, Chief Deputy Cantees asked HR Manager Peacher and Mr. Brock several follow-up questions about the incident (i.e., the validity of the complaint, if and how Petitioner's computer had been checked, etc.). Chief Deputy Cantees was satisfied with the information HR Manager Peacher provided to her, as well as the responses to her questions that were provided by HR Manager Peacher and Mr. Brock. Both HR Manager Peacher and the Chief Deputy Cantees relied on Mr. Brock's experience and expertise in computer forensics in determining the origin of the offensive images found on Petitioner's computer. Based on her discussions with HR Manager Peacher and Mr. Brock and her review of the record, Chief Deputy Cantees concurred with the recommendation of termination and the Clerk gave final approval. Petitioner was 71 years old when he was terminated from his employment with Respondent. The person hired to replace Petitioner was an individual estimated to be in the mid-40 to mid-50 range. Prior to the incident involving Petitioner, neither Respondent, nor the HR manager had received reports of, or knew of incidents of, employees having inappropriate (sexual) images on their computers. Therefore, no employees in the Clerk's Office have ever been disciplined for that offense. Medical Condition of Petitioner In 2002, Petitioner was diagnosed with a melanoma that required office surgery and other pre-cancerous lesions that also required treatment. The surgery and all other treatments were performed in the doctor's office and required no hospitalization. Between 2002, when he was first diagnosed with a melanoma and through July 2007, Petitioner has continued to be treated for skin cancer. During this five-year period, Petitioner's condition and his treatments for that condition have not significantly affected or, otherwise, limited Petitioner's ability to work or to engage in most activities. During the five-year period since he was diagnosed with skin cancer, Petitioner had regular check-ups, some of which may have resulted in his doctor's performing certain in-office medical procedures. Other than those in-office procedures, Petitioner's treatment for his condition consists of applying various salves, creams, and/or lotions to his skin. Finally, as a result of his medical condition, Petitioner had been directed to stay out of the sun. Because Petitioner must now stay out of the sun, he is no longer able to participate in daytime activities that he previously enjoyed doing and/or had been able to do (i.e., going to the beach and to his grandson's soccer and softball games). During his employment with the Clerk's IT Department, Petitioner never requested leave under the Family Medical Leave Act. Moreover, there is no indication that his medical condition affected his attendance at work. In fact, between January and July 2007, Petitioner saw his physician only about six times. Petitioner never notified Respondent, Mr. Brock, or Chief Deputy Cantees that he had skin cancer. Furthermore, none of them knew or suspected that Petitioner had skin cancer or any other medical condition. Finally, Petitioner's co-workers were unaware of his medical condition. While employed in the IT Department, Petitioner had several conversations with HR Manager Peacher. Petitioner recalled that during one of those conversations, HR Manager Peacher referred him to a dermatologist or assisted him with a medical referral. At this proceeding, HR Manager Peacher did not recall giving Petitioner the name of a dermatologist, but acknowledged that she may have done so. HR Manager Peacher explained that she speaks to numerous employees throughout the workday about various personnel-related matters and provides them with such assistance when requested to do so. Despite having several discussions with Petitioner during his employment with the Clerk's Office, HR Manager Peacher was unaware of his medical condition. Alleged Disability Discrimination Respondent conducted general meetings with employees every other month. During those meetings, Respondent covers a variety of topics with employees, all of which are on a printed agenda and later sent to employees by e-mail. The Agenda for the June 22, 2007, employee meeting included a three-page overview of the employee compensation package offered to Respondent's employees that included the following introductory statement: "Part of offering a competitive benefits plan is being proactive in maintaining a healthy lifestyle. Each of us must take the responsibility to live healthy lives, and, in return, our insurance costs will be minimized." During that meeting, Respondent read that language verbatim. In reading the above-quoted language, Respondent's intent was to encourage employees to address "preventable issues," such as smoking, overeating, and not exercising. However, in the charging document, Petitioner alleges that the above-quoted language meant Respondent wanted to hire only "healthy employees." Petitioner's interpretation distorts and misconstrues the above-quoted comments made by Respondent. Further, there is no evidence to support Petitioner's allegation that Respondent wanted to hire only healthy employees. Also, those comments do not, in any way, relate or refer to employees with disabilities and cannot reasonably be construed to do so. Claim of Age Discrimination Petitioner received such inquiries periodically and complained about the practice from time to time. For example, in a June 8, 2007, email to HR Manager Peacher, Petitioner complained about a phone call from ACS Recovery Service ("ACS"), a third-party health benefits coordinator. Petitioner perceived the ACS inquiries regarding Medicare eligibility as age discrimination. Sarasota County Government Benefits Manager Steve Marcinko testified credibly that ACS provides coordination of benefits services for Aetna, Sarasota County Government's third-party administrator. To carry out its responsibility, ACS is authorized to contact the employees to determine whether alternate insurance coverage, including Medicare, may be available to cover a claim that is otherwise the responsibility of the Sarasota County Government. Among those contacted by ACS are group health plan participants who are "post-65 and Medicare-eligible." The purpose of these contacts is to verify whether the participants are "active" or "retired" employees. Such verification assists in determining whether the group health plan or Medicare has primary or secondary responsibility for the benefits of those individuals. The inquiries by ACS are not age-based, except as they relate to an individual's Medicare eligibility, and are not conducted at the direction of the Clerk. When conducting these inquiries, ACS does not copy the individual's employer or former employer about such inquiries.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Michael L. Coyle's, Petition for Relief. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2010.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at 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 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue The issue for determination is whether Respondent, the Orange County Convention Center, discriminated against Petitioner, Norman H. Siales, on the basis of a handicap within the meaning of Section 760.10, Florida Statutes (2004).
Findings Of Fact Petitioner was first employed by Respondent in October 2000 as a set-up worker on an on-call basis. In June 2001, Respondent hired Petitioner in a regular full-time position as a set-up worker. Throughout his employment with Respondent, Petitioner's supervisors considered him a good employee who always performed his job properly and did assigned tasks to the best of his ability. Petitioner was incarcerated on or about July 8, 2004. Shortly after his incarceration, Petitioner called Steve Miller, one of the assistant supervisors in the Event Set-Up Department, and informed him that he was in the county jail. Petitioner was then told that he should keep Respondent updated on his situation. On or about July 9, 2004, Mr. Miller advised Mr. Schildgen, his supervisor, that Petitioner had called and reported that he was incarcerated. After first learning that Petitioner was incarcerated, Mr. Schildgen never heard from Petitioner. Moreover, Mr. Schildgen asked the two shift supervisors if they had heard from Petitioner, and they indicated they had not. Mr. Schildgen considered Petitioner a good employee and wanted him to return to work. However, in late July or early August 2004, after not hearing from Petitioner for about three weeks, Mr. Schildgen, in consultation with the manager of the Event Set-Up Department, determined that Petitioner's continued absence from the workplace, without notice, was a violation of the Orange County policy. According to the policy, employees could be terminated from employment if they were absent from the workplace for three consecutive days without notice to the employer. At or near the time Petitioner was employed by Respondent, he received a copy of the Orange County Government Employee Handbook (on June 11, 2001). He also received training on the Orange County Policy Manual. Petitioner signed an Employee Acknowledgement (March 30, 2004) form stating that he had received the training. The Employee Acknowledgement form, signed by Petitioner, further stated "I understand that I am responsible for complying with all Policies, Operational Regulations, Departmental Operating Procedures, and Departmental Guidelines, and that the failure to do so may be grounds for corrective action, up to and including termination." As a result of the training described in paragraph 6, Petitioner was aware of the Orange County policy that authorized employees to be terminated if they were absent from work three consecutive days and did not notify Respondent. Based on Petitioner's extended absence from the workplace and his failure to communicate with his supervisors regarding the absences, Respondent terminated Petitioner's employment. By letter dated August 26, 2004, Respondent terminated Petitioner's employment with the Event Set-Up Department. The reason for Petitioner's termination was that he had not communicated with Respondent since July 8, 2004. The letter also stated, "while we understand there were some extenuating circumstances involving the Orange County Sheriff's Office, we can no longer wait to address this violation of . . . policy." According to the termination letter, the applicable policy provides the following: "Failure to work for three (3) or more consecutive working days without proper authorization shall be considered job abandonment and result in immediate termination, unless the employee presents written proof that he/she was unable to make appropriate notifications through no fault of his/her own." When he was first incarcerated, Petitioner thought he would be held for 24 to 48 hours. However, he was not released until December 3, 2004. After Petitioner was released from jail, he went to his employer and asked if he could return to work, but was told that he could not return due to his excessive and consecutive absences without notifying his employer. Petitioner had a psychological evaluation when he was incarcerated, and a psychological report dated October 11, 2004, was generated as a result of that evaluation. Petitioner did not offer the evaluation into evidence, but testified that the evaluation indicated he had a mental illness. However, this report and the findings and conclusions therein have no bearing on this case as the report was prepared after Respondent terminated Petitioner's employment. Respondent was unaware of the psychological evaluation or report until the final hearing. During his employment with Respondent, Petitioner never advised his supervisor that he had a disability. Petitioner testified that in 2002 or 2003, he asked his three supervisors to help him "with the grievances." At hearing, Petitioner explained that when he used the term "grievances" he meant the mental, psyche, and physiological abuses he was suffering. In early 2002, while employed with Respondent, Petitioner sent a letter to Mr. Schildgen. According to Petitioner, the letter was about "psychological and physiological experimentations of science and technology." Mr. Schildgen found the letter described in paragraph 17 to be somewhat "strange," but nothing in the letter stated that Petitioner had a handicap or disability. After receiving the letter, Mr. Schildgen and two other supervisors met with Petitioner and asked him about the letter. During the meeting with his supervisors, Petitioner broke out in a cold sweat and rather than talking about the letter, started talking about subjects such as "Sigmund Freud and other stuff [Mr. Schildger and the other two supervisors] and we didn't quite understand where it was going." At no time during the meeting did Petitioner state or indicate that he had a disability. Moreover, there was nothing in Petitioner's personnel file that indicated he had a disability. At no time during his employment with Respondent did Petitioner advise anyone there that he had a handicap or disability. Also, Respondent never knew or considered Petitioner to be handicapped or disabled. The sole basis for Petitioner's termination was his violation of Orange County's "absentee policy."
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 Petitioner, Norman H. Siales', Petition for Relief. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 25th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman H. Siales Post Office Box 1772 Orlando, Florida 32802 P. Andrea DeLoach, Esquire Orange County Attorney's Office 435 North Orange Avenue, Suite 300 Orlando, Florida 32801
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2018.
