Findings Of Fact Ivan Rosario, the Petitioner, was at all relevant times an employee of Orange County, Florida, as an equipment operator (EO III) in the highway maintenance department and assigned to the landscape crew. Mr. Rosario's national origin, Puerto Rican, is uncontroverted. William Baxter is also an employee of Orange County and in 1989 was manager of highway maintenance. On or about October 10, 1989 he received a memo from Ivan Rosario's foreman recommending that Mr. Rosario be terminated for failing to meet the minimum qualifications for equipment operator. Mr. Rosario had been in that position since approximately September 27, 1989. In accordance with established due process requirements and Orange County policy, and after notice to Mr. Rosario and to other relevant parties, William Baxter conducted a pretermination hearing on October 20, 1989. The outcome of the hearing was Mr. Baxter's determination that Mr. Rosario was exonerated of any of the accusations or charges. Mr. Rosario was not terminated. It is Mr. Baxter's usual practice after such proceedings to write a letter stating the outcome and to provide a copy to the employee and to the personnel file. However, several years after the 1989 hearing, Mr. Rosario informed Mr. Baxter that the letter was not in his personnel file. After verifying this fact, Mr. Baxter agreed to write a statement and to put it in his personnel file. Mr. Baxter or someone in the county administrative staff had also inquired of the legal staff whether the original written charges could be removed from Mr. Rosario's personnel file. The response from the county attorney's staff was that the personnel files were public records and could not be destroyed or expunged without violating Chapter 119, Florida Statutes. In a memo dated August 1, 1994, William Baxter directed Mark Massaro, the manager of traffic engineering, to place this statement in Mr. Rosario's file: On October 20, 1989, a hearing was held concerning the allegations that Mr. Rosario was hired by Orange County and on the appli- cation form he had stated he was qualified to operate equipment, however, it has been alleged that he was not capable of operating this equipment nor had he ever operated this equipment. After conducting the hearing, I made a determination and I can find no faults with the qualifications of Mr. Rosario and that the allegations against him were false. This was the result of the hearing. (Respondent's exhibit no. 3, William Baxter deposition) There is no explanation of record for the absence of some written confirmation of Mr. Baxter's decision between 1989, when the hearing was held, and 1994, when the above-described memorandum was prepared. Mr. Baxter usually provides that written decision within approximately ten (10) days and he has no recollection of failing to write the letter earlier. Mr. Rosario contends that the unexplained charges in his file prevented his being promoted and kept him from a union stewardship. He also contends that the charges hurt his reputation. No evidence was presented regarding any specific promotional opportunities or any reasons why such opportunities might have been denied to Mr. Rosario. "Stewardship," a union appointment, is a matter within the jurisdiction of the union and its bargaining unit members. The county has no control over union stewardship appointments. Mr. Rosario presented two witnesses who were also displeased with their employment experiences at Orange County. Miguel Ortiz is a computer program analyst who was with the county for five years and left in October 1994 because he felt that he was denied equal employment opportunities. He filed many grievances during his tenure and was removed from stewardship due, he believes, to his pointing out problems. He concedes that union stewardship is a union matter and not a management prerogative. Jason Stroud is an equipment operator with the Orange County Highway Department. He only contends that he has a case "along the same lines" as Mr. Rosario's case. He claims that the county "makes the rules," and breaks them or makes up new rules. Orange County has an Equal Employment Opportunity program and compliance officer. That officer, Bernard Ouellette, investigates when there are internal charges and compiles responses to send to the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations. Mr. Ouellette has, in the past, found county supervisors who violate equal employment laws and they are dealt with and disciplined appropriately. A recent example is a county employee who made racially derogatory remarks and was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the complaint and petition for relief by Ivan Rosario be DISMISSED. DONE and ENTERED this 9th day of April, 1996, in Tallahassee, Florida. MARY W. CLARK, 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 9th day of April, 1996. COPIES FURNISHED: Ivan Rosario 16268 East Colonial Drive Orlando, Florida 32820 Jeffrey J. Newton Assistant County Attorney Orange County Attorney's Office Post Office Box 1393 Orlando, Florida 32802-1393 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 The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009.
The Issue Whether Respondent Al Packer Ford, Inc. terminated the employment of Petitioner Woodrow Samuel on the basis of race, which is an unlawful employment practice pursuant to Section 23.167 (1)(a), Florida Statutes.
Findings Of Fact Petitioner was discharged from his employment on August 8, 1978 and believes that his discharge was because he is black. Petitioner was hired on April 4, 1978 by the Service Manager for Respondent corporation who had been his supervisor at Dominion Chevrolet in Richmond, Virginia. Petitioner was employed as a quick service mechanic and worked for approximately three (3) monthe. During that time Petitioner's Production was low and at least on two (2) occasions made serious errors in servicing customers automobiles. Once he failed to put in oil, and once he failed to replace brake slices. He received a warning from his employer but was not discharged. Thereafter he was transferred to the Okeechobee Road Used Car Lot as a Lot Man. There he had the opportunity to make more money under a pay plan which did not depend on mechanical work by the job. After two (2) weeks he was transferred to the Respondent's main used car lot on Military Trail under the supervision of George Mills, and his salary was increased by forty (40) dollars per week. Prior to Petitioner's discharge Petitioner's immediate supervisor, George Mills, was on vacation. During this period Petitioner took a used Cadillac for his personal use from the lot in West Palm Beach and drove it to Miami for the weekend. Petitioner had not been authorized by Mills or by anyone else to use the Cadillac, according to the testimony of Mills which is more credible then the testimony of Petitioner. Mills learned of the use of the car by Petitioner after his return from vacation and after it had been scheduled for repairs. Mills stated that Petitioner had been warned not to use vehicles for his private use and, when he learned of the use of the Cadillac, terminated his employment and told him why. Petitioner appealed to his original employer, George Hollifield, who then was the supervisor of Petitioner's direct supervisor, for reemployment but was refused. Use of vehicles from the used car lot by employees of Respondent is allowed as a general company policy only upon specific authorization. A witness, another black man, had seen Petitioner use vehicles on occasion from the lot but did not know whether the use was authorized. About 10 percent of the employees of Respondent are Hispanic or Black, and the stated policy of the business is to employ competent people to make money for the corporation, and race is not a factor or consideration. Petitioner Samuel and Respondent submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the complaint and petition he dismissed by the Florida Commission on Human Relations. DONE and ORDERED this 1st day of October, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Franklin G. Callas, Esquire 125 Worth Avenue, Suite 308 Palm Beach, Florida 33480 Norman A. Jackson, Executive Director Florida Commission on Human Relations Suite 100, Montgomery Building 2652 Executive Center Circle, East Tallahassee, Florida 32301 Thomas E. Kingcade, Esquire Post Office Box 2755 Palm Beach, Florida 33480 Mr. Al Packer Al Packer Ford, Inc. 1530 North Military Trail West Palm Beach, Florida 33403
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 the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations (Commission) more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact The following facts, which are assumed to be true for purposes of considering Respondent’s motion to dismiss,” are contained in the Petition and the related documents referred by the Commission to the Division: 1. On or about October 1, 1999, Petitioner filed a charge of discrimination with the Commission. 2. The charge alleged that during the course of her employment with Respondent, Petitioner was "subject to a racially and sexually hostile work environment" and that she was “subject to disparate treatment in terms of scheduling, job assignments, work conditions, promotions and disciplinary actions." The charge further alleged retaliation by Respondent as a result of Petitioner's complaints regarding the discriminatory treatment. 3. The Commission staff investigated the charge, and based upon that investigation, the Executive Director of the Commission issued a "no cause" determination on August 27, 2002. On that same date, notice of the determination was sent to Petitioner by U.S. Mail. 4. The notice stated in relevant part: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied) . 5. Included with the notice was a blank Petition for Relief form, which Petitioner completed and sent to the Commission. 6. The Petition, like the charge of discrimination, alleges that Petitioner “was subject to a racially and sexually hostile work environment." 7. The Commission received the Petition on October 16, 2002, as shown by the date-stamp on the Petition. 8. There are no allegations in the Petition which explain the delay between the Commission's determination and the filing of the Petition. However, at the telephonic hearing on the motion to dismiss, counsel for Petitioner stated that the late filing of the Petition resulted from Petitioner’s mistaken assumption that weekends and holidays were not to be included when calculating the 35-day deadline for filing the Petition. 9. There is nothing to suggest that either the Commission or Respondent contributed in any way to Petitioner’s mistaken assumption regarding the calculation of the 35-day deadline. 10. Petitioner was apparently not represented by counsel at the time she filed the Petition.
Conclusions For Petitioner: Joseph P. Hoffman, Esquire 1415 Dean Street, Suite 110 Fort Myers, Florida 33901 For Respondent: Gordon R. Leech, Esquire Wiederhold, Moses & Rubin Brandywine Center II, Suite 240 560 Village Boulevard West Palm Beach, Florida 33409
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. _ | ; DONE AND ENTERED this / | day of April, 2003, in Tallahassee, Leon County, Florida. a, Ee To fod wore & T KENT WETH@RELL, Administrative Law guage Division of Administrative Hearings The DeSoto Building 1220 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 Pt Administrative Hearings this [ st day of April, 2003.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and if so, what relief should Petitioner be granted.
Findings Of Fact Respondent manufactures valves for the safe transportation of hazardous chemicals on tanker-trailers. Respondent is headquartered in the Vero Beach area; specifically, the Gifford community, which is a predominately African-American community. Respondent employs a significant number of employees from the Gifford community.1/ Petitioner is an African-American male who was employed by Respondent from approximately February 2012 until his termination in September 2013. At the time of his termination, Petitioner was employed by Respondent as an assembly technician. Petitioner was supervised by Darrall Holloway, an African- American male. The incident giving rise to Petitioner’s termination involved a physical altercation between two of Respondent’s employees, Jormonte Hunter (African-American male) and Mike Alvarado (Hispanic male) on September 25, 2013. The physical altercation followed approximately two months of arguing between Mr. Hunter and Mr. Alvarado over a female employee of Respondent. Mr. Holloway and his supervisor, John Brennan (Caucasion male), learned of the ongoing dispute between Mr. Hunter and Mr. Alvarado sometime during the afternoon working hours of September 25, 2013. That same afternoon during working hours, Mr. Holloway and Mr. Brennan met with Mr. Hunter and Mr. Alvarado and told them to cease their bickering, and to avoid any future confrontations with each other, on or off company property. That same afternoon during working hours, Mr. Holloway and Mr. Brennan also met with Petitioner and two other African- American male employees (Chris Joseph and Marcus Melbourne). During this meeting, Petitioner, Mr. Joseph and Mr. Melbourne were directed not to allow the situation between Mr. Hunter and Mr. Alvarado to escalate, on or off company property. Petitioner, Mr. Joseph and Mr. Melbourne were further warned that if the situation between Mr. Hunter and Mr. Alvarado escalates, on or off company property, “actions will be taken.” Nevertheless, Petitioner, Mr. Joseph, Mr. Melbourne, Antonio Wallace (African-American male), and Mr. Hunter left work after 4:00 p.m., on September 25, 2013, and drove to Mr. Alvarado’s apartment complex. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter went to Mr. Alvarado’s apartment knowing there was going to be a physical altercation between Mr. Alvarado and Mr. Hunter. After arriving at Mr. Alvarado’s apartment complex, Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter exited their vehicles. Mr. Hunter then walked toward Mr. Alvarado’s apartment, followed by Petitioner, Mr. Joseph, Mr. Melbourne, and Mr. Wallace. Moments later, Mr. Alvarado opened his apartment door, some words were exchanged between Mr. Alvarado and Mr. Hunter, and the physical altercation ensued. Petitioner and Mr. Wallace instigated and witnessed the physical altercation, and did nothing to try and stop it. Mr. Joseph and Mr. Melbourne also witnessed the physical altercation, and did nothing to try and stop it. The physical altercation between Mr. Hunter and Mr. Alvarado lasted a matter of seconds, resulting in Mr. Hunter slamming Mr. Alvarado’s face to the ground, causing Mr. Alvarado to suffer physical injuries to his face. The next day, September 26, 2013, Mr. Alvarado arrived to work with his face badly injured as a result of the altercation. On September 26, 2013, Mr. Holloway, Mr. Brennan, and Mr. Girard, the president of the company, learned of the physical altercation that had occurred between Mr. Alvarado and Mr. Hunter at Mr. Alvarado’s apartment complex the day before. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, Mr. Hunter, and Mr. Alvarado were all suspended pending an investigation by Respondent. Over the next few days, Respondent conducted an investigation. Following its investigation, Respondent terminated Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph. Mr. Girard made the ultimate decision to terminate Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph.2/ Petitioner was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting on September 25, 2013; he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado; and he was employed by Respondent for only one year and eight months prior to his termination, during which his job performance was, at times, below expectations. Mr. Hunter was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he was directly involved in the physical altercation with Mr. Alvarado. Mr. Wallace was terminated because he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado, and he was employed by Respondent for only six months prior to his termination. Mr. Joseph was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he witnessed the physical altercation between Mr. Hunter and Mr. Alvarado. Mr. Alvarado was not terminated because he was the victim of the physical altercation, and the physical altercation occurred at his residence. Mr. Melbourne was not terminated because he did not instigate the physical confrontation between Mr. Hunter and Mr. Alvarado, and he was a long-term and model employee of Respondent prior to the September 25, 2013, incident.3/ Following his termination, Respondent replaced Petitioner with Shaunte Collins, an African-American male. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, non- discriminatory reasons having nothing to do with his race. Petitioner’s charge of race discrimination is based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for his firing are a mere pretext for intentional race discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of December, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2014.
The Issue The issue for determination in this proceeding is whether the Respondent discriminated against Petitioner on the basis of handicap under Section 760.10, Florida Statutes, or disability under the Americans with Disabilities Act (ADA), by failing to award him the physical science/chemistry teaching position at Nease High School.
Findings Of Fact Petitioner applied for a position in 2002 and renewed the application in 2003. As a result of the 2002 application, Petitioner was offered a job, which he declined before attending orientation. On the 2002 application, Petitioner fully disclosed that he had been found guilty of DUIs in 1986 and 1988. In 2004, Petitioner became aware of a teaching position as teacher at Nease High School in the Respondent's school system. He was very interested in the position, called about the position, and was told that he must update his application on-line, which he hurriedly did. He was interviewed by Robert Corson, who was then the vice principal of Nease, who found that he was well qualified as a graduate of the U.S. Naval Academy with a degree in engineering who had taken three or four courses in physics. Petitioner was not certified, but there would have been no problem in getting him a temporary certificate that would permit him to teach while taking education courses to qualify him for certification in Florida. Corson observed that there were not a large number of quality applicants for hard science positions today, and Petitioner was the best qualified of the three candidates who applied. Just before orientation, Respondent's Human Relations (HR) office called and advised Corson that there was a problem with Petitioner's application because he had failed to report an arrest. It was normal for HR to tell the school the nature of the problem. HR told them that they would have to repost or re- advertise for the position, which they did. Corson reported that he failed to establish contact with Petitioner, but that the HR office was able to stop him at the orientation as he entered, and have Petitioner call the HR office. When Petitioner called, the HR office advised him that the employment offer was withdrawn. Petitioner first went to Corson. Petitioner wanted to see the principal of Nease, Mr. Schiavone, but Petitioner was so upset that Corson told him that he would not help himself unless he calmed down. Petitioner and Corson discussed the fact that Petitioner reported the arrests on the initial application, and Corson explained that it was out of his hands, and was an HR issue. Petitioner told Corson that he was going to the HR office. Petitioner went to the HR office and spoke with Mr. Springfield, the head of HR. Ms. Geiger, the head of the Instructional Employees' branch of HR sat in on the meeting. From the testimony of Mr. Springfield, it is fairly certain that he presented the problem as a matter of Petitioner lying on his application. This was the term that Springfield used in testifying at hearing. Petitioner explained that, while he may not have completed the on-line application correctly, he certainly did not intentionally misrepresent the matter of his arrest because he had reported them in his initial application. Ms. Geiger looked in the files under O'Brien's previous job offer, and found his initial application, which reported the DUIs as Petitioner had stated. Therefore, Springfield knew on the day the offer of employment was withdrawn that there had been no intent by Petitioner to misrepresent his qualifications. There was testimony presented by the Board about its procedures, and the superintendent's requirement that all job offers be withdrawn when a background check failed to agree with an applicant's application. After the matter of the "lie" had been resolved, the position of Springfield was that Petitioner would have to reapply for the position. This Petitioner did on that afternoon. There was no conflict regarding the correctness of his second application, which did report the DUIs. It is at this point that conflicts develop in the testimony, and there is a departure from normal procedures. Springfield testified that he could not remember if Petitioner was told that he must provide proof of "treatment" with regard to the DUIs. Geiger, who was present at the meeting, testified that Petitioner was told that he must provide proof of "treatment." Petitioner did not testify. Geiger testified that she did not follow the normal procedures of writing a letter to Petitioner outlining what he must do in response to the problems with his first on-line application because he was told these things at the meeting. Geiger made a memo to herself to follow up on Petitioner's application and on July 22, 2004, sent him an e- mail "reminding" him to submit proof of treatment. On July 27, 2004, Petitioner brought his Navy medical records to Geiger for her review and based thereon she and Springfield cleared him making him an "active" applicant. Unfortunately, Nease filled the position on July 26, 2004, by hiring Ms. Nall, a certified science teacher, who was presumably not handicapped. Petitioner asserts that the withdrawal of the job offer and denying him the position was discriminatory and based upon perceived disability. The Respondent asserts that it was just following standing procedures.
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 its Final Order directing that the Respondent cease and desist in the practices mentioned; that the Respondent be directed to hire the Petitioner upon his submitting an application for employment. Jurisdiction is retained for factual consideration of the damages to include costs and fees upon entry of the Commission's final order. DONE AND ENTERED this 29th day of December, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 December, 2005. COPIES FURNISHED: Karen J. Gallagher Qualified Representative 124 North Cove Drive Ponte Vedre Beach, Florida 32082 Thomas J. Leek, Esquire Kelly V. Parsons, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Whether Respondent violated Section 760.10(1), Florida Statutes (2002), by forcing the termination of Petitioner's employment with Respondent because of his gender (male), and/or national origin (Venezuela), and/or his age (37); and because Petitioner alleged that younger, female lifeguards were given better work assignments.
Findings Of Fact Petitioner was employed by Respondent from November 26, 2002, until April 17 2003, in the position of deep water lifeguard at Respondent's facility at the Grand Floridian Hotel (Grand Floridian) located in Lake Buena Vista, Florida. He worked in that position until his resignation on April 17, 2003. Petitioner is a Hispanic male, aged 37, and a member of a protected class. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was hired for a full-time position to work 40 hours per week. He normally worked a ten-hour shift, four days a week. Petitioner never applied for any other position or promotions during his employment. All full-time lifeguards at the Grand Floridian are covered by a collective bargaining agreement (CBA) between Respondent and the Services Trades Council Union. A lifeguard working at the Grand Floridian does not have to be a member or pay dues to the union in order to be covered by the terms of the CBA. Petitioner is not a member of the union. At the time of his hire, Petitioner was provided with a packet of materials containing Respondent's employment policies. Respondent had a policy regarding harassment that covered all of its employees and prohibited all types of harassment in the workplace, including any such behavior based on age, national origin, and/or gender. Respondent also has an "equal opportunity" policy that applies to all of its employees. This policy provides that all employees should be treated equally in terms of hours, work location, and scheduling based on seniority. Operations at the Grand Floridian Of the class of lifeguards hired at the same time, Petitioner was the only one assigned to the Grand Floridian. At the time of being assigned to the Grand Floridian, there were approximately 25 lifeguards employed there. The lifeguards at the Grand Floridian are full-time, part-time casual, or part- time regular employees. There are also "college program" lifeguards who perform all of the same duties as the full-time and part-time employees. The starting times for employees are staggered, based on the needs of the area and the time of the year. The main duties of a lifeguard at the Grand Floridian are to ensure safety and guard the pools, clean the pool and beach areas, work the cash register, and operate the marina. The head supervisor of the Grand Floridian lifeguards during Petitioner's employment was Jerry Davis. Davis has been employed with Respondent for nine years. He has served in his current position as the recreation operations manager for six years. His duties in this position include supervising the outside recreation areas, including the pools, boats, and lifeguards at the Grand Floridian. Davis plays no role in hiring the employees that report to him, but rather Respondent's Employee Relations Department is responsible for hiring these employees. Davis has the authority to terminate lifeguards that report to him. Prior to terminating an employee, however, Davis seeks the input of the Employee Relations Department. The evidence is credible that Davis is accessible to his direct reports and makes sure that his office is always open to them. If a lifeguard wants to speak with Davis, he will make himself available to him or her. As a manager, Davis has undergone training from Respondent regarding its equal employment policies and anti- harassment policies. He has also been trained that employees may raise complaints about working conditions with either their manager or the Employee Relations Department. All employees are made aware of these policies and complaint procedures as a part of their orientation program. Under Davis, the next supervisor was Darin Bernhard. Bernhard has been employed with Respondent for eight years and is currently employed as a recreation guest service manager. Until October 2003, Bernhard was employed at the Grand Floridian. In that capacity, Bernhard directly supervised lifeguards, marina employees, and activities' employees. Bernhard had continuous interaction with lifeguards throughout the day while at the Grand Floridian. Bernhard had an open-door policy to all employees and made himself accessible to them. Under Davis and Bernhard, there were three coordinators who served as the immediate supervisors of the lifeguards. The weekly work schedule for lifeguards was posted on the wall every week. Bernhard, along with Respondent's Labor Office, was responsible for preparing this weekly schedule. The factors used in preparing this schedule were a scheduling bid submitted by each employee, scheduled vacations, and operational needs. As for operational needs, Bernhard would try to give a combination throughout the week based on full-time, part-time, and college program employees and avoid having all college program employees on duty at one time, thereby providing more experience on each shift. The CBA contains a provision stating as follows: "The principles of seniority shall be observed in establishing days off and work schedules by department, location, or scheduling pool." As a result, the schedule bids of all employees were considered based on the seniority of the employees. At the time of his hire, Petitioner spoke with Bernhard about special scheduling requests. Specifically, Petitioner asked to receive early shifts and weekends off. He wanted the weekends off due to child-care issues with his son. Bernhard informed Petitioner that he would attempt to work with Petitioner on this, but that he was limited in what he could do based on the seniority requirements set forth in the CBA, as well as the fact that most of the lifeguards preferred to have weekends off. At that point in time, Petitioner had the least amount of seniority of all the full-time lifeguards, since he was the most recently hired employee. Despite the CBA restrictions, Bernhard made every effort to provide Petitioner with at least one day each weekend off and tried to provide him with two, whenever possible. On a regular basis, Petitioner was scheduled to have Saturdays off. In addition, on numerous occasions, he was given Friday, Saturday, and Sunday off from work, in accordance with his special request. At no time during his employment did Petitioner ever complain to Bernhard about not getting enough days off on the weekend. Employees would occasionally complain to Bernhard about the weekly schedule. When he received such complaints, Bernhard would listen to their complaints and not take any adverse action against any employee for complaining to him about scheduling issues. On occasion, lifeguards would be sent home early due to slow business or inclement weather. This decision would be made either by the immediate supervisor on duty or one of the coordinators. The lifeguards would be allowed to volunteer to go home on a "first-come, first serve" basis. No lifeguard, however, was forced to go home early. Similarly, Bernhard did not receive complaints from any lifeguard about being forced to go home early. The coordinators at the Grand Floridian were responsible for making the daily rotation schedules. There were five primary positions that the lifeguards could be assigned to on a daily basis, consisting of two lifeguard positions at the pool, the slide, the marina, and cashier. The coordinators made these assignment decisions based on the people they had available that day. The primary focus was to make sure that all of the areas were properly covered. Such daily rotation assignments were also based on certain needs during particular periods of the day. In addition, certain assignments were given to certain employees if they are more capable of performing the task. It is also not uncommon for the daily rotation to be changed during the day based on unexpected factors, such as absent employees. In terms of shift assignments, an effort is made to make sure that regular employees and college program employees are working together so that the regular employees can provide guidance when needed. During a workday, most of the employees rotate positions every 30 minutes to an hour. The rotation of duties for the lifeguards changed on a daily basis. Petitioner enjoyed working as a lifeguard because he considered himself a stronger lifeguard than others in his department. He also described himself as the "leader of the lifeguards." All lifeguards are trained in the cashier duties, but very few individuals are chosen to actually work as a cashier. These cashiers undergo special training prior to performing these duties. The primary attributes for a cashier are good guest interaction and good phone skills because a cashier is required to interact with guests, both on the telephone and in person. This assignment also differs from the other assignments in that the employee assigned to this position normally does not rotate throughout the day to other assignments. It is not uncommon for the same employee to serve as a cashier for an entire day. Petitioner was sometimes assigned to work at the marina, but not as a cashier. Petitioner never spoke with any of his supervisors or coordinators about working more at the marina or as a cashier. Each lifeguard at the Grand Floridian was required to complete four hours of in-service training each month, either at his home resort or at another resort. Attendance at these training sessions were tracked on a daily sign-in sheet. If a lifeguard failed to complete his or her in-service training for the month, he would be reprimanded. Davis prepared a reprimand for Petitioner on April 1, 2003. This reprimand was the result of Petitioner's failing to complete his in-service training hours for the month of March 2003. As a result of failing to complete this training, Petitioner received a two-point reprimand for poor job performance. Petitioner did not know when Davis prepared the Poor Job Performance Memorandum dated April 1, 2003. Davis and Petitioner did not see each other between Petitioner's accident on March 30, 2003, and the date Petitioner signed the Poor Job Performance Memorandum on April 9, 2003. At the time that Davis prepared this memorandum, Petitioner had not made any complaints of discrimination or harassment to Davis. The attendance of the lifeguards on a daily basis was tracked by the use of an electronic swipe card. The daily schedule and attendance of the lifeguards was also tracked on a daily sheet completed by the coordinators. This sheet was kept in the managers' office and was forwarded to the Respondent's Labor Office when it was completed. Bernhard usually reviewed these sheets on a daily basis as well. The lifeguards did not have access to these sheets on a daily basis. Under the attendance policy in the CBA, three absences in a 30-day period warranted a one-point written reprimand. An employee had to receive three written reprimands within a 24- month period before he could be terminated for attendance issues. The reasons for an absence did not make a difference for purposes of accruing points under the policy. On March 24, 2003, Petitioner called in sick and did not appear for work. On his way home from work on March 31, 2003, Petitioner was in a car accident in a parking lot on Respondent's property. As a result of that accident, Petitioner's car had to be towed because it was not drivable. Petitioner did not, however, seek medical treatment as a result of the accident. Shortly after the accident occurred, Petitioner contacted Bernhard. He informed Bernhard of the accident and told him that he would not be available for work the next day because his car had been destroyed. He did not inform Bernhard that he had been injured in any way. Petitioner was absent from work on April 1, 2003, because he had no transportation. Petitioner called in his personal absence on April 1, 6, 7, 8, 13, 14, 15, and 16, 2003, and was a "no show" on April 2, 2003. As a result of these numerous absences, Davis made a decision to contact Petitioner by telephone and inquire about the reasons for these multiple absences. Petitioner informed Davis that he still did not have transportation. Petitioner expressed concern to Davis that he was afraid he was going to accrue too many points and get himself terminated. Davis responded to Petitioner that if he did not return to work, he would accrue points under the attendance policy. Petitioner asked Davis if it would be better if he terminated himself or if he was terminated by Respondent. Davis also informed Petitioner that if he terminated himself, at some point he might be able to return to his job at Respondent, though he did not guarantee him that he could simply return. Davis made it very clear to Petitioner that this was a decision he had to make. At the time of Davis' phone call to Petitioner, he had accrued sufficient points under the applicable "attendance policy" set forth under the CBA to warrant giving him a one- point written reprimand. Davis had not been able to give the reprimand to Petitioner, however, because he had not returned to work. At no time had Davis ever informed Petitioner that such a reprimand was waiting for him. In addition, such absences would not have provided a basis for terminating Petitioner at that point in time. Petitioner contacted Davis the following day and informed Davis that he was going to voluntarily resign his employment. Upon learning of this decision, Davis informed Petitioner that he needed to return his uniform and all other of Respondent's property prior to receiving his last paycheck. All employees are required to return their uniform and Respondent's property at the time of resignation. Davis never informed Petitioner that he was being terminated or that he had an intention of terminating him. Similarly, Davis never told Petitioner that he had no option but to resign. Davis had no problem with Petitioner returning to work, provided he could obtain proper transportation. After Petitioner's resignation, Davis completed the required paperwork and indicated that Petitioner should be classified as a "restricted rehire." Davis chose this restriction due to Petitioner's tardiness and attendance issues, as well as his failure to take responsibility to make it to work. This decision to categorize him as a "restricted rehire" was not based on Petitioner's age, national origin or his gender. Petitioner visited Respondent's casting center (human resource department) on June 17, 2003, approximately two months after his resignation, with the intent to reapply for his prior position. Petitioner wanted to return to his same position at the Grand Floridian, working for Davis and Bernhard, as well as working under the same coordinators. On June 17, 2003, Petitioner met with Fernanda Smith, who has served as a recruiter for Respondent for five years. Smith was born in Buenos Aires, Argentina, and is Hispanic. As a recruiter, Smith is responsible for interviewing, selecting, and hiring the strongest candidates for positions at Respondent. She is responsible for hiring employees for all hourly, entry- level positions. The hiring process used by Respondent is the same for both new applicants and former employees of Respondent. That process is set forth in the "Rehire Review" policy given to each recruiter. Once Smith is randomly assigned an applicant, she brings them to her office and reviews their personal data in the computer. She then reviews the application for accuracy and completeness. She also confirms that they are qualified to work in the United States and their criminal background. Smith reviews the conditions of employment with the applicant, including compensation, appearance, ability to attend work and transportation. If the applicant was previously employed by Respondent, Smith also reviews the application for the reasons the employee previously left employment and the applicant's rehire status. The different rehire statuses are "yes rehire," "restricted rehire," and "no rehire." If a former employee has been categorized as a "restricted rehire," Smith then must confirm that the person is currently employed and that he or she has been at that employment for a period of at least six months at the time of re-application. Assuming they can satisfy these requirements, the applicant is required to provide an employment verification letter from their current employer within one week of the interview. At that point, the information is forwarded to a rehire committee for consideration. On June 17, 2003, Smith interviewed Petitioner for potential rehire with Respondent. She recalls that when she met him in the lobby, he was very professionally dressed. Upon entering her office, Smith reviewed the information on Petitioner's application with him. At that point, she noticed that he had a recent date of termination from Respondent and asked him the reasons for his termination. Petitioner responded that he had left his employment because of transportation problems and that he had missed a number of days from work. In reviewing Petitioner's application, she realized that he did not meet the requirements for consideration as a "restricted rehire." First of all, Petitioner did not offer any evidence of current employment at the time of the interview. Secondly, Petitioner had only been gone from Respondent for a period of approximately two months, and thus, did not have the six months of continuous employment to be considered for rehire. Smith shared with Petitioner that he did not meet the minimum requirements for a "restricted rehire." Petitioner had no idea what that designation meant. At that point, Petitioner responded by getting very upset, yelling and screaming at Smith, standing up and pointing his finger at her. He then informed Smith that he was going to sue Respondent for discrimination and left her office. Petitioner did not allow Smith to make any other comments to him. Immediately after Petitioner had left the building, Smith prepared the standard evaluation that she prepares for all applicants she interviews, including the incident that occurred in the interview with Petitioner. If Petitioner had allowed Smith to explain the process and eventually provided the appropriate documentation, he might have been considered for rehire. Based on his behavior in the interview, however, Smith recommended that he not be considered for rehire, particularly for the position of lifeguard where he would be dealing with guests on a regular basis. Allegations of Discrimination Petitioner alleges that one of the coordinators referred to his national origin in a derogatory manner on one occasion. Other than this isolated alleged comment, he stated he never heard anyone else at Respondent make any derogatory comments about his being Hispanic or Venezuelan. Petitioner did not complain about this comment to anyone at Respondent and specifically did not complain to Davis, Bernhard, or employee relations about it. Other than this one comment by an unnamed coordinator, Petitioner offered no evidence that any actions or decisions were taken against him based on his national origin. In support of his age discrimination claim, Petitioner alleges that some of his co-workers referred to him once or twice as "old." Petitioner did not offer any evidence that any of his supervisors or coordinators ever used any of these terms in reference to him. Petitioner does not know whether or not he ever discussed his age with other workers. At the time of Petitioner's resignation, he was not the oldest lifeguard working at the Grand Floridian. Penny Ivey and Sherry Morris were both older than Petitioner, and Davis was born on February 5, 1951. At the time of Petitioner's resignation, Davis was 52 years old. Other than these alleged isolated comments, Petitioner offered no other evidence that any actions or decisions were taken against him based on his age. Petitioner claims that one example of gender discrimination was that the rotation schedule was not equal. In particular, he alleges that the "young and beautiful girls" were preferred in the rotation schedules because they were allowed to work in the marina and at the cash register more than males. Petitioner alleges that Jaimy Tully, a 23-year-old female lifeguard, was always late. For example, Petitioner alleges that Tully was late on March 2, 2003, based on the fact that she was supposed to be there at 10:00 a.m. The daily schedule indicates that she arrived for work at 9:30 a.m. In reviewing the document, however, it indicates "S/C" which means that a schedule change was made, and Tully showed up for work half an hour early, not late, and she still worked her scheduled day of ten hours. A schedule change would occur for several reasons, including the need to have certain employees come in early for an in-service session or the personal request of an employee. It sometimes required employees to come in for work early and other times required them to work later. Petitioner similarly alleges that Tully was late on March 22, 2003, and should have been fired for that. In reviewing the daily schedule for that date, however, it is evident that a schedule change was made, and Tully was scheduled to work from 9:30 a.m. to 8:30 p.m., a regular 10-hour day, and that she actually worked those hours. Petitioner admitted at the hearing that she was actually early to work and not late. Petitioner alleges that Tully was late again for work on April 7 and April 16, 2003. A review of those daily schedules, however, reveals that Tully had a schedule change on each of those days and that she worked the hours that she was assigned. Of all these allegations of Tully being late to work, Petitioner never complained to anyone about it. Petitioner then alleges that Tully arrived for work early on February 15, 2003, and that she was allowed to work extra hours and earn overtime. On that particular occasion, however, Tully was called in early because she needed to attend an in-service training session that was occurring that day. Petitioner conceded that Tully was not late on that day. Petitioner admitted that both males and females were called in to work additional hours as lifeguards. For instance, Michael Whitt, a male employee, was allowed to start work earlier based on a schedule change on March 4, 2003. Similarly, a schedule change was made involving Whitt on February 25, 2003, and he was required to report to work at 11:40 a.m., not 10:00 a.m., and as a result, was not given any breaks that day. Petitioner never received any discipline as a result of being late to work or for leaving work early. Petitioner claims that he suffered discrimination on January 12, 2003, because Tully was allowed to start work later than he and then was allowed to work as a cashier for the majority of the day. He claims that she should have been on a rotation like him and that she was given more hours than he was. Tully was trained as both a lifeguard and a cashier, but she had more cashier experience than the majority of the other lifeguards. She also had good guest-interaction and cash- handling skills, and thus, she was placed as a cashier more than most of the other lifeguards. The cashier assignment also differed from the other assignments in that the employee assigned to this position normally did not rotate throughout the day, and it was not uncommon for the same employee to serve as a cahier for an entire day. Petitioner never spoke with any of his supervisors or coordinators about serving as a cashier, nor did he ever complain to Bernhard about any of his daily assignments. He alleges that the woman and the "young girls" were always placed at the marina. When asked to identify "these girls," he stated he was referring to Mindy and Matt, a male employee. In particular, Petitioner testified that on December 25, 2002, Matt served in the marina for three consecutive rotations on that particular day. He also points out that Matt had a longer break than he did on that particular day. There was no pay differential between employees who were assigned to work at the marina and those who worked at the pool. Similarly, there was no pay differential between employees working as a cashier and those at the pool. Petitioner never made any complaints to Davis about his weekly schedule or his daily rotation assignments. Similarly, Petitioner never complained to Davis about any disparate treatment or harassment based on his age, national origin, or gender. Petitioner never raised any complaints about discrimination or any other working conditions with Bernhard. Bernhard never made any derogatory comments to him or about him. Bernhard does not give any preference to any employees based on age, national origin, or gender. Petitioner was aware that there was an Employee Relations Department located at the casting center, but never complained to them about his working conditions or alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES Petitioner's Petition for Relief and dismisses his complaint. DONE AND ENTERED this 14th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2004. COPIES FURNISHED: Fernando J. Conde 4732 Olive Branch Road Apartment No. 1205 Orlando, Florida 32811-7118 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
