The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
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 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue Whether Respondent committed the unlawful employment practice alleged by Petitioner in her Employment Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") on May 3, 2016; and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the record as a whole and the evidence presented, the undersigned makes the following findings of material and relevant facts: Petitioner started her employment in July 2002 with Events by Premier. The company provides exclusive catering services for the Jewish Center in Aventura, Florida.3/ Petitioner's employment in 2002 followed her marriage to Michael Pollak, a co-owner of Events by Premier. Petitioner became a full-time employee in 2013 and was assigned to the position of kitchen manager. At that point, her husband was the chef and supervised her work in the kitchen. Their work relationship continued in this manner until she was terminated from employment in late July 2015. Petitioner's performance was satisfactory, and there was no evidence to suggest that she was unable to adequately perform her duties as kitchen manager. The evidence was largely undisputed that the position of kitchen manager was created specifically to accommodate Petitioner and her husband, a co-owner of the business. There had been no prior kitchen manager positions at Events by Premier, and the title and position were not needed to operate the business. Another owner of Events by Premier, and its president, was Steven Pollak. He is the brother of Michael Pollak and was Petitioner's brother-in-law. During the weeks leading up to her termination in July 2015, her relationship with her husband, Michael Pollak, became openly strained and tense due to marital problems. Steven Pollak described the work environment between Petitioner and her husband as not a good one, and it created, as he described, a "toxic" work environment. There was screaming, hollering, and profanity exchanged between Petitioner and her husband at work. It was decided that Petitioner needed to be terminated for the best interests of the company and also due to the unprofitability of the company in the first half of 2015.4/ As a result of the poor working environment existing between Petitioner and her husband, and Respondent's unprofitable performance in the first half of the year 2015, Steven Pollak informed Petitioner on July 26, 2015, that he was letting her go.5/ After she was fired, Petitioner filed a Complaint with FCHR. The basis of her Complaint was that she was terminated because of her "marital status." At the hearing, Petitioner explained her opinion regarding the basis for her termination. She felt that her termination occurred because the company feared that she knew things about the company, including improper unemployment claims and other financial information.6/ It was clear to the undersigned that Petitioner had serious emotional and relational issues with her husband that made it difficult, if not impossible, for her to work harmoniously with him. She testified at the hearing and characterized her relationship with her husband after her termination as "out of control." Based upon the evidence presented and the record as a whole, Petitioner was not terminated because of her "marital status." Rather, the evidence demonstrated that there were legitimate and non-discriminatory business reasons for terminating Petitioner. Similarly, her termination was based upon the hostile relationship which existed between Petitioner and her husband, Michael Pollak, in the weeks and months leading up to her filing a petition for divorce--not because of her marital status (e.g., not because she was married, separated, or divorced).
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 4th day of May, 2017, 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 4th day of May, 2017.
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 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.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Coastal Properties (“Respondent” or “Coastal Properties”), discriminated against Petitioner, Harry (Hal) Hingson (“Petitioner”), based upon his age and race in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509.092, Florida Statutes.1/
Findings Of Fact Petitioner is a Caucasian male who was 60 years old in May of 2014, when Respondent allegedly discriminated against him by terminating his employment because of his age. Respondent is a management company for third-party owners of apartment communities, home owners associations, and condominium associations. Respondent employed Petitioner as a maintenance worker at the Twin Oaks apartment complex, a 242-unit apartment complex in Tallahassee, Florida. On May 6, 2014, after work, Petitioner and his supervisor, Clint Creel, were involved in a physical altercation off the job site, while fishing together on a boat. After the boat returned to the dock, Petitioner went inside his home. Rather than securing himself in his residence and calling law enforcement, Petitioner retrieved a gun from his residence, exited his residence, and fired the gun multiple times at Mr. Creel. Mr. Creel was struck in the back of the leg by a bullet and received medical treatment for his gunshot wound. Although he was shot, Mr. Creel returned to work the next day. Petitioner did not return to work the day after the incident as he was seeking medical treatment for the injuries he sustained during the physical altercation. Two days after the shooting, Respondent terminated Petitioner's employment. The decision to terminate Petitioner was made by the Respondent's Vice-President, Ray Allen, in consultation with the President, Dennis Fuller, after Mr. Allen spoke to both Mr. Creel, and Petitioner, about the shooting. Respondent presented the undisputed testimony of Mr. Allen and Mr. Ray that Petitioner's employment was terminated to protect the safety of the other employees and the residents at the Twin Oaks property. Mr. Creel expressed concern about his safety to Mr. Allen if he had to continue working with Petitioner. Mr. Allen and Mr. Fuller also were concerned about the safety of Mr. Creel, as well as the other employees and residents, if Petitioner and Mr. Creel continued to work together. Petitioner's Discrimination Complaint alleges that Petitioner was discriminated against based on race and age. In particular, Petitioner alleges that he was discriminated against because he was terminated after the off-the-job altercation, but his younger supervisor was not. The evidence adduced at the final hearing, however, failed to substantiate Petitioner's claim of discrimination. Other than testifying that he at one time, prior to the incident, was told that he was moving slow and at another time was told he was acting feeble, Petitioner did not present any direct or circumstantial evidence sufficient to reasonably suggest that Respondent discriminated against him in employment because of his age. Even if Petitioner had presented evidence sufficient to establish a prima facie case of age discrimination, Respondent provided a legitimate non- discriminatory reason for terminating Petitioner's employment. Petitioner admitted that Mr. Allen advised him that he was being terminated because he no longer wanted Petitioner and Mr. Creel to work together. Petitioner admitted Mr. Allen told him that he would have continued to employ Petitioner by moving him to another property, but there were no other openings. Respondent’s evidence demonstrated that the day after Petitioner was terminated, of its 59 employees, 25 were over the age of 40, 11 were over the age of 50, and one employee was older than Petitioner. The evidence also showed that 54 days after Petitioner was terminated, of Respondent’s 64 employees, 25 were over the age of 40, 10 were over the age of 50, and one employee was older than Petitioner. Petitioner failed to establish Respondent's reason for terminating his employment was a pretext for age discrimination. Petitioner's Discrimination Complaint further alleges he was discriminated against based on his race because another employee, a younger African-American, was arrested for DUI but was not terminated. Petitioner presented no evidence at the final hearing to substantiate that allegation, and Petitioner failed to present any evidence whatsoever to show that Respondent discriminated against Petitioner because of his race. In sum, Petitioner failed to show that Respondent discriminated against Petitioner by treating him differently, or terminating his employment because of his race or age.
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 Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2015.
The Issue Whether Respondent, Cracker Barrel Old Country Store (Respondent), committed the unlawful employment practice, as alleged, in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Pritesh, Inc., d/b/a IHOP 36-151 ("IHOP"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2011),1/ by discharging Petitioner from her employment in retaliation for her complaints regarding racial and religious discrimination in the workplace.
Findings Of Fact IHOP is an employer as that term is defined in subsection 760.02(7), Florida Statutes. IHOP is a restaurant in Leesburg. IHOP is owned by Pritesh Patel, who owns and operates a total of four International House of Pancakes stores in the Leesburg area through his corporation, Pritesh, Inc. Petitioner is a black female who is an observant Jew. Because of her religious beliefs, Petitioner does not work on the Sabbath, from sundown on Friday until sunset on Saturday. Petitioner was hired to work as a server at IHOP on March 19, 2012. She made it clear that she did not work on the Sabbath, and IHOP agreed to respect her religious beliefs. There was some difference in recollection as to the notice Petitioner gave to IHOP. Petitioner testified that she made it clear she could not work until sundown on Saturdays. The store manager, Brian Jackson, also recalled that Petitioner stated she could only work Saturday evenings. Mr. Patel testified that Petitioner said that she could work on Saturday "afternoon." Petitioner's version is credited as being more consistent with her stated beliefs, though there is no doubt that Mr. Patel was testifying honestly as to his recollection. Petitioner was the only black server working at IHOP at this time. Both Mr. Patel and Mr. Jackson credibly testified that IHOP has had many black servers through the years. Mr. Jackson noted that Petitioner only worked for IHOP for a period of two weeks and therefore was in no position to judge IHOP's minority hiring practices. Petitioner testified that assistant manager Hemanshu "Shu" Patel, a relative of the owner, created a hostile working environment for her from the time she started on March 19. She complained that Shu would alter the seating chart so that she would have fewer tables to cover, meaning a reduction in her tips. Petitioner also stated that Shu was disrespectful and rude, in a manner that caused her to believe there was a racial motivation behind his actions. Despite the fact that Shu was subordinate to Mr. Jackson, Petitioner believed that Shu was really in charge because he was a relative of Mr. Patel and therefore "untouchable" as an employee of IHOP. Petitioner's main complaint was that Shu, who was in charge of work schedules for the restaurant, scheduled her to work on Saturdays. Petitioner testified that on the first Saturday of her employment, March 24, Shu called her to come into work at noon. She replied that she could not come in until after sundown. This problem was apparently worked out to Petitioner's satisfaction, and she was not required to report to work on Saturday afternoon. However, when Shu posted the next week's schedule on the following Tuesday, Petitioner saw that she had been scheduled to work on the morning of Saturday, March 31. Petitioner complained. Both Mr. Patel and Mr. Jackson testified that Shu had merely made an error in scheduling that was rectified as soon as Petitioner notified them of the problem. Petitioner did not deny that the problem was resolved mid-week, well before any Sabbath conflict could arise. Mr. Patel testified that he wanted Petitioner to work from 4 p.m. until midnight on Saturday, March 31, so that she would not lose a day's work due to the scheduling error. Shu phoned Petitioner early on Saturday afternoon and asked her to come in. Petitioner told Shu that she could not come in until 8 p.m. Mr. Patel testified that he did not need someone to work a four-hour shift, and that Petitioner was told not to come in. As a further reason for declining to work on Saturday evening, Petitioner testified that she had only been trained for the morning shift. Mr. Jackson testified that the only distinction between the dayshift and the nightshift is that the latter is less busy. All servers are trained for the morning shift. Mr. Jackson stated that, once trained for the morning shift, a server would find the night shift "a piece of cake." Petitioner's reason for not working in the evening was not credible in this respect. Mr. Patel testified that he had no problem with Petitioner's not working on that Saturday, provided that she understood she was going lose a day. Mr. Patel stated that from his point of view the problems began when Petitioner insisted that he give her weekday hours to make up for the lost Saturday hours. Mr. Patel declined to cut another employee's hours for Petitioner. Petitioner came in to work on the morning of Sunday, April 1. Sunday morning is a busy time for IHOP. According to head server Bernadine Hengst, Petitioner stood near her at the register and voiced her complaints about Shu, who was working in the kitchen. Shu heard Petitioner and stepped into the dining room, asking her, "You got something to say to me?" Petitioner and Shu became loud, and their argument was moved outside for fear of disturbing a restaurant full of people. Petitioner finished her shift then went home and composed a letter to Mr. Patel. She made copies of the letter for every employee at IHOP. Ms. Hengst was the first to see the letter. She phoned Mr. Jackson at home to tell him about it, and Mr. Jackson phoned Mr. Patel. The letter read as follows: On March 19, 2012, I was hired to work as a server. I am a professional, pleasant, respectful, prompt and dutiful individual. As the only African-American server, it is imperative that you know since I have arrived at IHOP, I have faced fierce blatant hostility from a manager ("Shu") and co- workers ("C.C., Misti and Cherish"). I feel Shu has deliberately created a divisive and hostile working environment. It is my understanding Shu is a family member yet his behavior is definitely bad for business. On two separate occasions, Shu altered the seating chart that Brian originally created and took two tables from me. He lacks proficient management skills and is totally unprofessional, disrespectful and rude. On Sunday, April 1, 2012, Shu spoke to me in a loud, impolite manner in front of staff and customers. Shu communicated in a very bellicose fashion and for a moment, it felt as though he would physically attack me. You must take it serious that Shu's conduct is detrimental to your business. When Shu hired me I made it clear that I am Jewish and do not work on the Sabbath ("Saturday"). Nevertheless, Shu called me to come into work on Saturday about noon; I told him I would come in after the Sabbath at 7:00 p.m. The following week I was scheduled to work a Saturday, which in turn caused me to lose a day of work. Also on April 1, 2012, Shu assigned me only two booths for the whole day; when I spoke up about it he threatened to take another booth from me. This type of attitude and his unfair behavior cannot be tolerated in the United States of America in 2012. Shu is outwardly mean, discriminative, and racist towards me. He acts like a tyrant, a bully and he feels he is untouchable. On Sunday, April 1, I was only assigned two booths while my co-workers had four to six tables. This was unfair seating arrangements. At the end of the day, Bernie [Hengst] told all the servers to tip out the busboy, yet I did not because I was unjustly treated by only being assigned two tables. This was one-sided and insulting. I am an exceptional waitress and I depend on this job to pay my bills. During my first week, I was scheduled to work 36.10 hours and this week I was only given approximately 23.0 hours. Everyone should be treated fairly and equally. I ask that you continue to give me a full schedule each week. This letter officially informs you of the battles I have dealt with in your establishment and I have not worked here for one whole month. All Americans have the right to work without being harassed. I urge you to intervene and equitably resolve this issue. Ms. Hengst testified that Shu is a loud person who "talks with his hands," but she saw nothing that gave her the impression that Shu would "physically attack" Petitioner. She did not detect that Shu treated Petitioner any differently than he treated other servers. Ms. Hengst saw Petitioner as an equal participant in the April 1 confrontation. As to Petitioner's complaint about the number of tables to which she was assigned, Mr. Jackson testified that servers are always trained on two booths and then moved to four booths after training is completed. He stated that Petitioner was doing a "terrible" job working four booths, which caused Shu to move her down to two. Mr. Jackson stated that it is counterproductive to overwhelm a new server, and that the server must demonstrate the ability to perform the basics before taking on more tables. On the morning of April 2, after reading Petitioner's letter, Mr. Patel went to the IHOP and sat down for a meeting with Petitioner in hopes of addressing her complaints. Mr. Patel testified that the first thing Petitioner asked him was, "Do you know how many black employees you have?" Though he had been willing to discuss Petitioner's grievances concerning scheduling, Mr. Patel decided to fire Petitioner when she started "threatening us" based on claims of "black and white discriminating." He decided to fire Petitioner for the future of his business, because he did not want the problems associated with allegations of discrimination. Mr. Jackson was also at the April 2 meeting, and testified that Petitioner claimed she was being singled out because of her race. Based on all the testimony, it is found that Petitioner had little basis for claiming that IHOP was discriminating against her based on her race or religion during the actual course of her job. She was mistakenly scheduled to work on Saturday, but was not required to come in to the store once she made management aware of the error. She did lose one shift's worth of work for March 31, but that was partly due to her declining to work the evening shift. The evidence established that Shu Patel was loud, somewhat hotheaded, and perhaps not the ideal choice for managing a busy restaurant, but did not establish that he singled out Petitioner for particular abuse because of her race or religion. The evidence established that Petitioner's poor job performance was the cause of at least some of the friction between her and IHOP management. However, Mr. Patel's own testimony established that he dismissed Petitioner in direct retaliation for her complaint of discriminatory employment practices. IHOP offered no legitimate, nondiscriminatory reason for Petitioner's dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Pritesh, Inc., d/b/a IHOP 36- 151 committed an act of unlawful retaliation against Petitioner. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner. DONE AND ENTERED this 5th day of March, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2013.
The Issue Whether Petitioner, Marlowe D. Robinson ("Petitioner"), was unlawfully discriminated against by Respondent, Broward County School District ("BCSD"), his employer, based on his disability and in retaliation for complaining about discrimination, in violation of chapter 760 of the Florida Statutes, the Florida Civil Rights Act; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner worked for BCSD for approximately 20 years prior to the termination of his employment on May 8, 2018. Petitioner is a disabled veteran. At the time of his termination, Petitioner was employed as the Head Facility Serviceperson at BCSD's office in the Katherine C. Wright Building ("KCW"). On February 5, 2016, Richard Volpi began working at KCW as the Manager of Administrative Support and as Petitioner's immediate supervisor. During Mr. Volpi's third day on the job, Petitioner told him that he was not happy that Mr. Volpi was at KCW and that KCW was "his house." He also told Mr. Volpi that he did not work because he "delegated to his crew." On February 18, 2016, Petitioner filed two internal labor grievances. In the first, he asked to have his job title changed to "Building Operations Supervisor." In the second grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin, Chief of Staff, created a hostile and unclean work environment. Mr. Volpi processed the grievances by having a meeting with Petitioner on February 25, 2016. Finding no basis for the grievances in the collective bargaining agreement, Mr. Volpi denied them. On October 10, 2016, Mr. Volpi met with Petitioner to discuss a significant pattern of Petitioner coming in late, failing to notify BCSD when arriving late, staying after his scheduled shift to make up time without authorization, failing to call in as required for sick days, and failing to have pre- authorization for using accumulated leave. After the meeting, Mr. Volpi issued a written "Meeting Summary," which included counseling, based on Petitioner having come in late 24 days since August 1, 2016, and only notifying Mr. Volpi's assistant of the tardiness on three of those 24 days. The "Meeting Summary" was not considered discipline and stated, "If for any reason you need to change your shift hours to assist you in getting to work on time, please let me know." On October 19, 2016, Petitioner filed his third internal labor grievance after Mr. Volpi became his supervisor. The third labor grievance made numerous allegations against Mr. Volpi, including, but not limited to, sexual harassment, unspecified Family and Medical Leave Act ("FMLA") violations, and retaliation for filing prior grievances. On October 26, 2016, Petitioner submitted a request for intermittent leave pursuant to FMLA. The next day, Petitioner was notified that his FMLA leave request was incomplete, and was therefore denied. Petitioner was later granted intermittent FMLA leave with the agreement that he was to provide advance notification of his anticipated absences. On November 9, 2016, Petitioner was notified in writing to appear at Mr. Volpi's office on November 16, 2016, for a pre- disciplinary conference to discuss Petitioner's failure to adhere to the directive of October 10, 2016, to notify Mr. Volpi if he was going to be late, out for the day, or working outside his scheduled hours. The letter specified that Petitioner was late October 11, 13, and 17, 2016, without notifying Mr. Volpi, and that Petitioner was late and worked past his regular scheduled hours on October 21, 25, and November 7, 2016. The letter also specified that Petitioner "called out" (took time off) without notifying Mr. Volpi on October 31 and November 1, 2, 3, 4, and 8, 2016. In response, Petitioner filed a fourth grievance against Mr. Volpi alleging retaliation, bullying, and violations of the Americans with Disabilities Act ("ADA") and various policies of BCSD. On November 16, 2016, Mr. Volpi memorialized in writing that Petitioner failed to show up for the November 16, 2016, pre-disciplinary meeting. On November 21, 2016, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on November 30, 2016, for a pre-disciplinary meeting to replace the original meeting scheduled for November 16, 2016. Petitioner was not disciplined for not showing up to the November 16, 2016, meeting. The meeting on November 30, 2016, went forward as scheduled and Petitioner was issued a verbal reprimand on December 5, 2016, his first discipline from Mr. Volpi, for Petitioner's ignoring the prior directive to contact his supervisor if he was going to be late, absent, or wanted to work beyond his scheduled shift. He was again reminded that he had to make such notifications and have permission in advance of working hours other than his regular shift. On January 12, 2017, Petitioner was granted a reasonable accommodation pursuant to the ADA. The accommodation granted permitted Petitioner to report to work within one hour of his scheduled work time and leave within one hour of his scheduled end time ("flex time"). Additionally, Petitioner was required to notify his supervisor in advance of using flex time. Mr. Volpi assisted Petitioner in the accommodation process. Mr. Volpi provided Petitioner the accommodation paperwork and advocated for Petitioner to be granted an accommodation. On January 26, 2017, Petitioner again came in late without providing Mr. Volpi advance notice of intent to use his flex time. On January 27, 2017, Mr. Volpi sent an email to Petitioner reminding Petitioner that he was required to notify him if he is going to be late. This was not considered discipline. On March 21, 2017, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on March 27, 2017, for a pre-disciplinary meeting regarding ongoing excessive tardiness and failure to adhere to his work schedule. On March 23, 2017, Petitioner filed his fifth internal labor grievance, again alleging harassment (among other claims) against Mr. Volpi. On March 28, 2017, Petitioner filed his sixth internal labor grievance, again making harassment allegations against Mr. Volpi. On April 6, 2017, Petitioner was issued a Written Reprimand by Mr. Volpi for his nine days of tardiness in February and March and his failure to notify Mr. Volpi in advance. On April 7, 2017, Petitioner appealed the Written Reprimand. Petitioner also filed his seventh and eighth internal labor grievances alleging discrimination on the basis of disability and retaliation. Petitioner filed his Charge with the FCHR on April 13, 2017. Mr. Volpi conducted a first-step grievance hearing on April 27, 2017, and as a result of the discussion with Petitioner, who agreed to notify Mr. Volpi in advance of his inability to arrive at work as scheduled, the April 6, 2017, Written Reprimand was reduced to a verbal warning. The FCHR dismissed Petitioner's Charge with a No Reasonable Cause Determination on October 10, 2017. Between January 1 and February 15, 2018, Petitioner came to work late 14 days without providing prior notice, was absent without leave two days, and worked overtime one day without prior authorization. As a result, BCSD issued a three- day suspension on February 21, 2018. On February 22, 2018, Mr. Volpi met again with Petitioner to go over the expectations and provided a reminder memo not to work unauthorized hours without prior approval. On March 13, 2018, Mr. Volpi asked BCSD to issue a ten-day suspension to Petitioner for his ongoing failure to report to work at assigned times, unauthorized overtime, and absences without leave. In response, Petitioner filed yet another labor grievance. BCSD approved the ten-day suspension on April 10, 2018. Despite the ADA accommodation, increasing discipline, multiple counseling meetings and reminders, Petitioner continued his pattern of tardiness, unauthorized overtime, and absences. Accordingly, BCSD terminated Petitioner's employment on May 8, 2018. Petitioner's discipline and ultimate termination were not performance based, but rather, related solely to ongoing attendance issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing FCHR Petition 201700954. DONE AND ENTERED this 6th day of December, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 6th day of December, 2018.
The Issue The issue is whether Respondent, Bar-B-Que Management, Inc. d/b/a Sonny's Real Pit Bar-B-Q (Respondent), discriminated against Petitioner, Dorine Alexander (Petitioner), based on an alleged disability and her race.
Findings Of Fact Respondent is a management company with employees at 16 franchise-owned restaurants in central and north-eastern Florida. Respondent has employment policies that prohibit discrimination on the basis of race and disability. It also has policies that provide for reasonable accommodation of employees with disabilities. Respondent's policies inform employees about the procedure to be followed in reporting perceived race or disability discrimination. The policies prohibit retaliation against employees who report perceived discrimination. Petitioner is an African-American female. Respondent employed her as a cashier in its Belleview, Florida, location from July 14, 2008, to April 5, 2009. At the beginning of her employment, Petitioner was aware of Respondent's policies relative to discrimination. Respondent provided her with a copy of its Team Member Handbook containing the policies. Petitioner's duties included working as a cashier in both the drive-thru and at the front counter. She also was responsible for stocking all takeout areas and completing side work. Initially, Petitioner's job required her to perform deck scrubbing. However, when Petitioner notified her manager that deck scrubbing made it difficult for her to breathe, she no longer had to perform that task. Petitioner never complained that she continued to have breathing difficulties even when others were performing deck scrubbing. Respondent accommodated Petitioner's alleged breathing problem even though Petitioner never provided Respondent with requested medical documentation indicating that she had asthma or any other respiratory difficulties. There is no competent evidence to show that Petitioner is disabled. In the Fall of 2008, Respondent demoted the general manager at the restaurant where Petitioner worked. The demotion was based on poor performance, including not enforcing company policies and failing to hold employees accountable for compliance with company policies and performance standards. Respondent directed the new management team to enforce company policies and to issue discipline when appropriate. The directive was communicated to the restaurant's employees. After the change in management, Petitioner received numerous disciplinary write-ups. The write-ups included the following: (a) violation of Respondent's policy against use of cell phones during working hours; (b) violation of Respondent's policy against smoking on the premises and/or parking lot while in uniform during working hours; (c) violation of Respondent's attendance policy, requiring employees to arrive at work on time and to attend mandatory meetings unless excused; (d) violation of Respondent's cash-handling policy, resulting in cash overages and shortages; and (d) violation of Respondent's work performance standards by failing to stock supplies and complete other side work duties. Non-black employees received written discipline for the same violations as Petitioner. At least one white employee was terminated for violating the cell phone usage policy. Prior to February 2009, Petitioner worked an average of 25 hours per week. The fewest number of weekly hours worked by Petitioner after February 2009 was 19 hours. Petitioner worked 19 hours for only two weeks. Petitioner asserts that she was not allowed to "pick up" extra shifts when another cashier went on vacation for five days. Scheduling requests had to be submitted by Tuesday for the next week's schedule. Petitioner failed to timely request any of the extra available shifts. Instead, she approached the scheduling manager after the schedule was already completed. Despite the lateness of her request, the scheduling manager revised the schedule to assign Petitioner one extra shift. Beginning in January 2009, Respondent's schedules were created and posted on-line through a computer program called Hot Schedules. At all times relevant here, the schedule was posted late only three times. The late posting affected all employees, not just Petitioner. Petitioner asserts that she was assigned to work the drive-thru more than white employees. This assertion is without merit as shown by the following statistics. Petitioner worked 59 shifts between January 1, 2009, and her resignation on April 5, 2009. Respondent assigned Petitioner to work in the drive-thru on 23 of those shifts, approximately 39 percent of the total shifts. Petitioner worked at the front counter for the remainder of her shifts, approximately 61 percent of the total shifts. Two white cashiers, Brittany Knaul and Sarah Liles, worked a comparable number of shifts between January 1, 2009, and April 5, 2009. During that time, Ms. Knaul worked 54 shifts, with 25 shifts or 46 percent assigned to the drive-thru. Of the 86 shifts worked by Ms. Liles, 33 shifts or 38 percent were in the drive-thru. On the other hand, Beatrice McKoy, a black cashier, worked almost exclusively at the front counter between January 1, 2009, and April 5, 2009. Petitioner sought out and spoke with Respondent's Director of Operations, Josh McCall, on several occasions during her employment. The conversations involved her requested accommodation and complaints about the disciplinary write-ups. Petitioner never reported any perceived race discrimination. On one occasion, Mr. McCall asked Petitioner if she believed she was being discriminated against based on her race. Petitioner denied that she was being treated differently from non-black employees. Petitioner submitted a letter of voluntary resignation on March 30, 2009. Her last day at work was April 5, 2009. Petitioner asserts that she was constructively discharged. However, Petitioner failed to notify Respondent of the alleged discrimination until she spoke with Respondent's Area Manager on April 6, 2009, after her resignation and last day at work. Shortly after her last day at work for Respondent, Petitioner voluntarily resigned her other job with Internet Access. Petitioner resigned that job due to a dispute with her manager. Petitioner obtained subsequent employment which ended when that company closed in June 2009. Petitioner remained unemployed until February 2010. The only employment she held in the intervening six months was occasional work assisting her sister, who is a home health aide.
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 13th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2010. COPIES FURNISHED: Joanne B. Lambert, Esquire Jessica A. DeBono, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dorine Alexander 307 Marion Oaks Course Ocala, Florida 34473 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
