The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
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 the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent discriminated against Petitioner on the basis of her gender, age, and race as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is a 49-year-old, African-American female. Petitioner was hired as a customer service representative at Respondent's Maitland, Florida, location on June 3, 2002. Petitioner received a copy of NuVox’ Employee Handbook, which addressed Respondent's anti-discrimination policies, as well as its policies regarding employee conduct, attendance, paid time off, and termination. Respondent provides voice and data communications services to businesses. On or about August 24, 2009, Petitioner was discharged from her employment with Respondent. Arleen Couvertier was Petitioner's supervisor between January 30, 2009, and May 2009. On February 20, 2009, Petitioner received a verbal warning for violating a policy regarding breaks, when she left for a break during a team meeting. Petitioner was informed that failure to comply with the expectations stated in the warning could result in further disciplinary action up to, and including, immediate termination. On April 8, 2009, Petitioner asked to have May 13, 2009, off as she had been subpoenaed to be in court. Petitioner was advised that she would not have enough paid time off to cover an absence on May 13, 2009, as she had already been approved for a three-day vacation at the end of May into early June, which would put her time off balance at an unacceptable negative 15 hours. Respondent suggested that Petitioner reduce her planned vacation by one day in May so the requested May 13, 2009, time off could be approved. Petitioner was reminded that if she kept her vacation hours, the May 13, 2009, court day would be an unplanned absence, which would result in an unpaid occurrence in accordance with Respondent's policies. Petitioner did not rearrange her vacation schedule and took May 13, 2009, off as an unapproved, unpaid absence, thus, earning an attendance occurrence. On May 11, 2009, Katylyn Weems became Petitioner’s supervisor. In May and June, Petitioner did not meet her performance goals. Petitioner's supervisor reviewed her performance statistics with Petitioner and suggested ways that she could improve. On July 30, 2009, Petitioner received a verbal warning from Ms. Weems, which was witnessed by her former supervisor, Ms. Couvertier, for an attitude problem that was borderline insubordinate, because Petitioner failed to acknowledge or respond to three different managers’ in-person, email, and instant message communications on July 29, 2009. Ms. Couvertier felt that Petitioner’s body language, her failure to answer a question asked from three feet away, and subsequent failure to turn away from her computer to answer the same question asked by Ms. Couvertier directly to Petitioner, was insubordination. On August 6, 2009, Petitioner was placed on a Final Written Warning for poor performance. In addition to her low work quality scores in May (45 percent) and June (54 percent), Petitioner scored equally as low in July (49 percent), compared to her goal of 85 percent through August. Petitioner was informed that she had to show significant performance improvement in 11 specific areas, including, but not limited to, continue to be on time at the start of the shift. Petitioner was told that she was expected to show immediate and sustained improvement in her performance and that failure to comply with the expectations in the final warning could result in further disciplinary action up to, and including, immediate termination. On August 10, 2009, Petitioner asked her supervisor to allow her to take Thursday, August 20, 2009, off from work. Ms. Weems denied her request, explaining that she had previously approved Petitioner’s request to take off Monday, August 24, 2009, and Wednesday, August 26, 2009, which was going to create a negative 13-hour balance and, therefore, she could not approve any greater negative time off balance. On August 20, 2009, Petitioner left a message for Ms. Weems that she would not be in that day because she had an appointment, which was later repeated by email. Petitioner did not appear for work on August 20, 2009. Ms. Weems sent an email to Petitioner informing her that she had earned a third unpaid occurrence for her August 20, 2009, absence without paid time off available, along with information about her two other occurrences. Ms. Weems also informed Petitioner that her day off on August 24, 2009, was no longer approved due to her lack of paid time off. On Friday, August 21, 2009, Petitioner called in to say she would not be in to work. Ms. Weems verbally informed Petitioner on the telephone that because she had taken unapproved time off on August 20 and 21, 2009, the approvals for time off on August 24 and 26, 2009, had both been rescinded and the days off would have to be rescheduled as she had no more available paid time off. Knowing that Petitioner had been subpoenaed to appear in court on August 26, 2009, Ms. Weems suggested that she try to come in on August 21, 2009, even arriving late, so that she would still have a paid time off day available to use on August 26, 2009. Petitioner said, “okay” before she ended the call, but did not come in to work at all on August 21, 2009. On August 24, 2009, Ms. Weems reminded Petitioner that her absence on August 20, 2009, was unapproved and that Petitioner had taken that day off anyway, as well as August 21, 2009. Ms Weems further reminded Petitioner that the August 20 and 21, 2009, absences had caused the approvals for time off on August 24 and 26, 2009, to be rescinded as Petitioner had no paid time off and could not have a further exception. In response, Petitioner emailed Ms. Weems, "I understand[,] but I will not be here on the 26th[.] I will be in court." As a result, on the same day, Petitioner was terminated due to insubordination related to her attendance and poor performance. The "insubordination" is related to Petitioner taking both August 20 and 21, 2009, off when she was told that she could not have August 20, 2009, as paid time off. Respondent presented evidence that credibly supports its assertion that its attendance policy was applied equitably without consideration of race, sex, 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 finding that Respondent, NuVox, did not discriminate against Petitioner, Jacquelyn Brown, and dismissing the Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2010.
The Issue Whether Respondent is guilty of an unlawful employment practice by failing to hire Petitioner on the basis of age or in retaliation.
Findings Of Fact On February 24, 1994 (amended March 10, 1994), Petitioner filed a Charge of Discrimination, based on age and retaliation, with the Florida Commission on Human Relations. That charge listed the most recent discrimination as October 18, 1993 and alleged that Petitioner had been rejected for a post in Panama City; that Respondent, through a Ms. Retherford, had denied Petitioner access to other applicants' records for ten days; and that Ms. Retherford, Ms. Jenkins, and Ms. Ciccarelli of Respondent's District 2, had made sure everyone in their District knew Petitioner's name and to avoid hiring him. To further specify his charges, Petitioner attached a December 16, 1993 memorandum from Ms. Radigan to Mr. Clary. (See below, Finding of Fact No. 56). The Charge of Discrimination then concluded, "the specific job for which I applied was set in Marianna and closed on 18 October; though I had been referred to that job by Karen Dalton, an HRS specialist at HRS headquarters, I never had a chance at that job." (P-2) By a "Determination: No Cause", dated March 20, 1995, the Commission advised Petitioner that he could file a Petition for Relief within thirty-five days, pursuant to Section 760.11 F.S. On April 22, 1995, Petitioner filed his Petition for Relief, which was referred to the Division of Administrative Hearings for a formal evidentiary hearing, pursuant to Section 120.57(1) F.S.. That timely Petition for Relief alleged both age and retaliation discrimination by Respondent's failure to hire Petitioner for a number of posts, none of which the Petition specifically named by position number or date. The retaliation allegation was based on Petitioner's "causing trouble," not due to his filing any prior formal complaints with the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations or upon his participation in these types of litigation on behalf of anyone else. Although the subject matter jurisdiction of the Division of Administrative Hearings is bounded by the Charge of Discrimination, the Petition for Relief, and Chapter 760 F.S., the parties were permitted to present some historical information. Even so, the parties' presentation of evidence did not always clearly correlate Respondent's dated employment advertisements for named, numbered, or described positions to specific applications of Petitioner and/or specific interviews or hirings of other persons. Respondent agency demonstrated that as of October 13, 1993, it was employing at least one employee older than Petitioner, at least one in her sixties, others in their fifties, and hundreds who were over 39 years old. However, none of this information is particularly helpful in resolving the issues in this case. While Respondent's figures may speak to longevity of employees or duration of their employment with Respondent, they are silent as to each employee's age as of the date Respondent first hired each one. (R-9) Petitioner is a white male who at all times material was 63-65 years of age. Petitioner repeatedly applied for job vacancies advertised by Respondent agency and was not hired for any of them. Every position for which Petitioner applied required, at a minimum, that applicants have a bachelor's degree from an accredited college or university plus three years' professional experience in one or more of the following employments: abuse registry; developmental services; law enforcement investigations; licensed health care; children, youth, and family services; child support enforcement; economic services; aging and adult services; licensed child day care; mental health; or elementary or secondary education. Specific types of bachelor's degrees or any master's degree could substitute for one of the three years' required experience in the named programs. Specific types of master's degrees could substitute for two years of the three years' required experience in the named programs. However, no matter how many or what type of college degrees an applicant had earned, Respondent still required applicants to have at least one year of specialized experience. (P-1, R-1, R-2, R-4, R-5, and R-7). In fact, Petitioner met the foregoing requirements at all times material. "In the late summer of 1992," Petitioner first responded to one of Respondent's advertisements for a Protective Investigator position in Panama City. (P-1, P-14) He was turned down without an interview for that position by a letter dated September 22, 1992. (P-1). Feeling that he was qualified for the foregoing position and that he should have at least been given the opportunity to interview, Petitioner made an appointment with Ms. Charlie Retherford, who had advertised the position. The contents of Ms. Retherford's explanation about ten days later is not of record, but Petitioner remained dissatisfied. Petitioner next made a request pursuant to Chapter 119 F.S., The Public Records Act, to view the records of other applicants. Petitioner felt he was "hassled" over this request, but admitted that Respondent provided the records within two weeks. Petitioner did not elaborate upon why he felt "hassled," only stating that he felt two weeks was an "unreasonable delay." Petitioner analyzed the records and formed the opinion that "there was good reason to believe" Respondent did not interview him because he was over 60 years old. Petitioner testified that those applicants selected by Respondent for interviews averaged 29 years old, but Petitioner did not offer in evidence the records he had reviewed so as to substantiate his assertion. In correspondence and interviews which occurred after September 22, 1992, Petitioner revealed his age to various employees of Respondent. (See Findings of Fact 14, above, and 24, 41, and 45 below). However, an applicant's age or birth date is not required on Respondent's standard employment application form, and on Petitioner's September 5, 1992 application received by Respondent September 9, 1992 (P-14), Petitioner had left blank the "optional" line for date of birth. Therefore, it was not established that the Respondent knew, or even how the Respondent could have known, Petitioner's age prior to its September 22, 1992 failure to hire him. Despite Petitioner's testimony as to the average age of interviewees, the mean age of all the applicants up to September 22, 1992 was not established, so it is not clear whether any twenty-nine year olds or persons younger than Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants who were interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of Respondent refusing to interview applicants of any age. By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator with its Aging and Adult Services Unit in Chattahoochee. (P-4). By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-5) By a January 22, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-6) By a January 27, 1993 letter, Respondent turned down Petitioner's application as a Protective Services Abuse Registry Counselor after he was interviewed. (P-3, P-7) (See Findings of Fact 24 and 41, below. By a February 25, 1993 letter, Respondent turned down Petitioner's application for Research Assistant Position No. 05396 at Florida State Hospital. (P-8) Petitioner did not offer in evidence any of his applications corresponding to the Respondent's refusals to hire him between September 22, 1992 and February 25, 1993. 1/ For the period of September 22, 1992 through February 25, 1993, Petitioner's only evidence of age or retaliation discrimination was his subjective personal conviction that age was a factor in Respondent's refusal to hire him and the Radigan memorandum issued ten months later and discussed in Findings of Fact 56-65, below. Affording Petitioner all reasonable inferences, the undersigned infers that due to Petitioner's post- September 22, 1992 interview with Ms. Retherford, Respondent's District 2 hiring personnel could have been aware of Petitioner's age from late September 1992 onward. However, there was no evidence presented by which it can be affirmatively determined that between September 22, 1992 and February 25, 1993 that Respondent knew the age of all other applicants before deciding which ones to interview or that there was a pattern of only interviewing persons under a certain age. 2/ Further, in an August 12, 1993 letter, Petitioner stated to the Secretary of Respondent agency that he had, in fact, been interviewed by Respondent in January 1993. (P-3) (See below, Finding of Fact 41.) It also must be inferred from that information that Respondent did not systematically exclude Petitioner from the interview process on the basis of age or retaliation at least through January 1993. Petitioner's last application before October 14, 1993 which was admitted in evidence is dated April 8, 1993. It was stamped "received" by Respondent on April 9, 1993. It also does not give his age or date of birth. It specifies that Petitioner was applying for a Protective Investigator position closing April 12, 1993. (P-15). In April 1993, Brenda Ciccarelli, an official in Respondent's District 2, requested Karen Dalton, a recruitment coordinator in Respondent's Personal Services Section, to review Petitioner's employment application to determine if he met the minimum requirements for employment in the advertised position. Ms. Dalton's testimony is not altogether clear as to which application or applications she reviewed in April 1993, but from the evidence as a whole, it is inferred that she reviewed Petitioner's September 5, 1992 (P-14) and/or his April 8, 1993 (P-15) applications or applications by Petitioner which were substantially similar. Ms. Dalton analyzed Petitioner's application(s) and determined that Petitioner did not meet Respondent's minimum requirements. She satisfied herself that she had made a correct analysis by conferring with Mr. Joe Williams of the Department of Management Services. By a May 7, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-9) Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from May 24, 1993 to June 7, 1993. (R-1) Respondent readvertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from June 21, 1993 to July 26, 1993. (R-2) Effective August 6, 1993, Respondent hired Jack Connelly, then 45 years old, for Position No. 48210 in Port St. Joe, Gulf County. (R-3) Respondent introduced a tabulation of the ages of the applicants for Position No. 48210 which was completed as of the effective date the position was filled. It included columns listing birth dates of applicants, if known; a column indicating applicants' handicaps, if any; a column indicating whether an applicant was eligible; and a column indicating which applicants were interviewed. (R-3) Mr. Connelly, the successful applicant, was interviewed, as were eleven other applicants. Ten applicants, among them Petitioner, were not interviewed. (R-3) The applicants who were interviewed were respectively forty-five, fifty, forty-six, forty-one, thirty-seven, fifty-eight, one unlisted, forty- four, forty-one, forty-four, and thirty-one years of age. The ages of those not interviewed were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two. (R-3) There is nothing in the record to show that the qualifications of the applicants interviewed or those of Jack Connelly, who was hired, were lower than Petitioner's qualifications. There is no discernible pattern of excluding anyone by age. 3/ Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 50968 in Panama City, Bay County from May 17, 1993 to May 31, 1993. (R-4) Respondent readvertised Protective Investigator/8308 Position No. 50968 in Panama City, Bay County from June 21, 1993 to July 6, 1993. (R-6) By a July 20, 1993 letter, Respondent turned down Petitioner's application for Protective Investigator in Panama City. (P-10) Effective August 6, 1993, Respondent hired Edward Bonner, then fifty- three years old, for Position 50968. He was one of the applicants interviewed. (R-6) Respondent presented another columnar tabulation completed as of the effective date Mr. Bonner was hired. It showed that the interviewed applicants were ages fifty-three, fifty, forty-six, forty-one, twenty-seven, fifty-eight, one unlisted, forty-six, forty-one, forty-four, and thirty-one, respectively. The uninterviewed applicants were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-seven, and thirty-two respectively. (R-6) Again, there is no discernable pattern of excluding anyone by age. 4/ There is nothing in the record to show that the qualifications of the interviewees or of Edward Bonner were lower than Petitioner's qualifications. On August 12, 1993, Petitioner wrote the agency Secretary, Mr. H. James Towey, complaining that he had been discriminated against because of his age, which he then gave as This letter listed the dates of discrimination as 9/22/92, 11/24/92, 11/24/92 again, 1/22/93, 1/27/93, 2/25/93, 5/7/93/ and 7/20/93. Therein, Petitioner admitted that Respondent had interviewed him approximately January 1993 for a System Abuse Registry Counselor position and that the interview had gone very well from his point of view. (P-3) Respondent advertised Protective Investigator/8308 (anticipated vacancy) Position No. 04385 in Panama City from June 21, 1993 to July 6, 1993. (R-7) Effective September 3, 1993, Respondent hired Johnnie A. Knop (female), DOB unlisted, for Position No. 04385. Respondent's tabulation completed on the effective date of hiring Ms. Knop showed that not counting Ms. Knop, whose age does not appear, the interviewees were thirty-eight, fifty, forty-six, forty-one, thirty-three, fifty-eight, forty-four, forty-one, forty- four, and thirty-one years of age, respectively. The non-interviewees were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two years of age. (R-8) Once more, there is no discernible pattern of excluding anyone by age. Moreover, it is not possible to tell whether or not Respondent hired someone older or younger than the Petitioner. 5/ There is nothing in the record to show that Johnnie Knop's qualifications were lower than Petitioner's. In September, 1993, Ms. Dalton had a conversation with Petitioner which lasted approximately ninety minutes. Based upon the contents of Petitioner's Exhibit 13, it is found that this conversation occurred on September 13, 1993 in response to letters of complaint written by Petitioner on May 20 and August 12, 1993. The Petitioner's May 20 letter is not in evidence, but it is inferred that the August 12 letter referenced in P-13 was Petitioner's complaint to Secretary Towey (P-3) concerning age discrimination and discussed above in Finding of Fact 41. During their conversation, Ms. Dalton discovered that some of Petitioner's remote job experiences were useful for certifying him qualified. Together, Petitioner and Ms. Dalton worked through a list of Respondent's job openings, and Ms. Dalton sent one of Petitioner's applications on to Cheryl Nielsen who was hiring for a position in Marianna. At formal hearing, Ms. Dalton explained credibly that she had not originally categorized Petitioner as meeting the professional experience requirement in the "elementary or secondary education" category because she misunderstood his prior application(s) which she had reviewed. Where the September 5, 1992 application had related Petitioner as employed as "a teacher at Dozier School for Boys (Washington County Program at Dozier)" and the April 8, 1993 application listed him as " a teacher at Dozier School for Boys" for eleven months in 1990-1991, Ms. Dalton previously had understood that his employment merely constituted "shopwork, independent living", which is literally part of what Petitioner had written. Ms. Dalton previously had not equated that phraseology with professional teaching experience in an elementary or secondary school. Ms. Dalton also credibly explained that she had the erroneous perception of Petitioner's past experience listed as "supervisor, driver education" at Parks Job Corps Center as being solely employment in a private driver's education school. Petitioner had written "vocational training center," to describe the Center's function. Less understandable but unrefuted was Ms. Dalton's testimony that she had not equated Petitioner's teacher status for eight years in the Oakland County, California Public Schools as "teaching" because of the way Petitioner's application(s) had presented that prior employment which had occurred in the late sixties and early seventies. Despite both applications clearly stating this was public school teaching, Ms. Dalton had once again erroneously assumed that Petitioner had worked in a driver education school, when he had, in fact, been teaching a regularly scheduled minor course curriculum of driver's education in the standard curriculum of a public high school. Apparently, she had given less emphasis to this and had become confused by the explanatory material that Petitioner had added to explain the other things he had done besides teaching. She also gave less emphasis to other employments involving several years even if they included the word "teacher" because they were remote in time. (P-14 and P-15; compare P-16). After their clarifying interview, Ms. Dalton considered Petitioner qualified for the position(s) applied for, even though his qualifications previously had not been apparent to her from his written application(s). Convinced that Petitioner's application style did not present him to best advantage, Ms. Dalton advised Petitioner how to re-do his application to emphasize the factors significant to Respondent and maximize his employment opportunities with Respondent. On the basis of their conversation alone, Ms. Dalton sent a September 15, 1993 letter to Petitioner, and copied Ms. Jenkins and Ms. Ciccarelli, both employed in Respondent's District 2, to the effect that Petitioner met the eligibility requirements for the Protective Investigator classification. (P-13) Petitioner revised his application to detail that some of his school activities which were remote in time actually involved teaching. He submitted the rewritten application to Ms. Dalton approximately October 14, 1993. (P-16). After the revision, Ms. Dalton credited Petitioner with three years and nine months of "teaching in an elementary or secondary school" based only on his teaching during the 1960's. She also forwarded the revised application to Marianna and Ms. Nielsen. A review of the Petitioner's only three applications in evidence (September 5, 1992 at P-14; April 8, 1993 at P-15; and October 14, 1993 at P-16) reveals that Petitioner's original application style is so detailed and thorough that some portions September 1992 and April 1993 applications are less than clear as to what entity employed him and what his title was. For instance, he frequently used job titles that were more administrative, like "program manager", than educational, like "teacher". While a thorough reading of either of the applications in Petitioner's original style would probably reveal that he had, indeed, been employed in public school teaching positions approximately 30 years before, Petitioner's original applications require much more concentrated reading than does his revision in order to sort through the material matters and exclude extraneous and cumulative material that had no significance to Respondent's application process. The unrevised applications are not clear that he actually "taught" for a total of three years and nine months in public elementary or secondary schools as understood by Respondent's assessment system. According to Cheryl Nielsen, the position in Marianna for which Petitioner was certified eligible by Ms. Dalton and which closed October 18, 1993 was a temporary position. It existed solely because the individual holding the permanent position had been on workers' compensation leave. When it became apparent to Ms. Nielsen that the injured job holder would not be returning permanently, she decided not to continue the hiring process for the temporary position. Instead, she decided to advertise and fill the position in Marianna as a permanent position once the appropriate waiting period ran out. This was a reasonable decision because it would require six weeks' training before any hiree would be useful and because by going directly to the hiring of permanent personnel, Ms. Nielsen could avoid having to repeat the training process with a different person in a short period of time. No one was interviewed or hired for the temporary position for which Petitioner applied. There is no evidence in this record to tell the undersigned if Petitioner applied for Miss Nielsen's permanent position. Indeed, there is no evidence that Petitioner applied for any positions with Respondent after October 14, 1993. On November 26, 1993, Petitioner wrote Mr. Clary, Respondent agency's Deputy Secretary for Administration. The "Re:" line of this letter states that the letter refers to "'contracts' which cost HRS a fortune but serve no legitimate purpose." A fair reading of Petitioner's letter is that he was complaining concerning a letter from Dr. James Henson of Tallahassee Community College (TCC) which constituted a reply to Petitioner's inquiry concerning a TCC job vacancy announcement. Neither Petitioner's letter to Dr. Henson nor Dr. Henson's reply letter to Petitioner are in evidence to further explain what was actually going on. In his November 26, 1993 letter to Respondent's Deputy Secretary Clary, Petitioner characterized Dr. Henson's letter to him as "condescending" and "elitist" and stated Petitioner's opinion that Respondent should not have contracted with TCC to recruit field instructors because it was a waste of money. Petitioner's letter is entirely coherent, but its tone is agitated and vituperative. It attacks the agency's expenditure of funds to Dr. Henson and TCC and their qualifications. It does not mention Petitioner's age or job applications to Respondent in any way. (P-12) Apparently as a result of yet another of Petitioner's letters dated November 19, 1993, which November 19, 1993 letter is not in evidence, Ms. Radigan, Respondent's Assistant Secretary for Children and Family Services, wrote the following December 16, 1993 memorandum to Deputy Secretary Clary, copying Secretary Towey and the Assistant to the President of TCC. I wanted to give you some feed back on this issue. Mr. Sondel has written many such letters across the last six to eight years. He is very well known by the recruitment and personnel professionals in the Tallahassee area, in both the private and public sectors. Bob Roberts discussed this issue with Mr. Marshall Miller, special assistant to Dr. Henson at Tallahassee Community College (TCC). Mr. Miller suggested that DHRS [Respondent agency] should make no response to or take any action pertinent to the letter. Dr. Henson would prefer that he or his attorney make any response as he sees proper. The field instructor position in question is one of twenty new contracted professionals being recruited state wide that will be located in each district to provide clinical expertise, technical assistance, job coaching and staff training for a four unit staff in the Children and Family Services Program. Due to the nature of the job tasks that will be assigned to the new contracted professionals, the Districts expect that they will have relevant professional training and work experience in public child welfare systems. Please let me know if you have any questions, or wish to have additional information. Emphasis and bracketted explanatory material supplied. (P-11)57. The language emphasized above was not emphasized in Ms. Radigan's original memorandum, but has been characterized in Petitioner's testimony as "the smoking gun" upon which Petitioner relies to demonstrate that Ms. Radigan, via "retaliatory slander", had prevented Respondent agency from hiring Petitioner throughout 1992- 1993. He attributed her remarks to be the result of his letters to the Respondent complaining of age discrimination. Petitioner testified credibly and without refutation that he had never applied for employment with Respondent before the summer of 1992 and that he was first denied employment by Respondent on September 22, 1992. This is accepted. At the time of Ms. Radigan's memorandum, Petitioner had filed no formal charges of discrimination against Respondent. Therefore, it is impossible for any retaliation by Respondent between September 22, 1992 and October 18, 1993, if it existed, to have been based upon formal charges by Petitioner. Petitioner's subjective reading of the Radigan memorandum to the effect that it presents him as a "kook who should not be taken seriously" is one possible interpretation, but otherwise, Petitioner's interpretation is flawed. The Radigan memorandum is dated well after Respondent's last failure to hire Petitioner. That alone is not conclusive to show that its contents did not affect Respondent's hiring process between September 22, 1992 and October 18, 1993 because it could relate back to Respondent's prior retaliatory non- hiring practices. However, a clear reading of the memorandum itself does not permit such an interpretation. First, the memorandum refers to a letter by Petitioner dated approximately a month after the Respondent's last failure to hire Petitioner. Although Petitioner claimed that the Radigan memorandum refers to Petitioner's complaints of age discrimination, that was not proven. Since the Petitioner's November 19, 1993 letter, which the Radigan memorandum addressed, is not in evidence, it is impossible to determine precisely which of Petitioner's complaints Ms. Radigan's memorandum addressed, but even if Petitioner's November 19, 1993 letter had complained of age discrimination, that complaint was made after Petitioner had ceased to apply with Respondent. Therefore, retaliation at that point could not relate backwards to hiring practices already concluded. The letters of Petitioner over six to eight years to which the body of the memorandum refers apparently include his letters to private sector entities as well as government agencies other than Respondent agency. Therefore, the fact that Petitioner had only been applying to Respondent for two, not six or more, years (see Finding of Fact 58, above) does not establish any intentional misstatement of fact by Ms. Radigan. If these letters and Petitioner's November 19, 1993 letter to Respondent all contained complaints of age discrimination, then it was appropriate for Ms. Radigan to report that fact, but there simply is insufficient evidence in this record to determine if that is what happened here. Ms. Radigan's memorandum says nothing to the effect that Respondent should not hire Petitioner, that TCC should not hire him for itself, or that TCC should not recruit him for a position with Respondent. Nothing in the memorandum permits the inference that Ms. Radigan did anything except investigate the situation existing between Petitioner and TCC and report back to her superior all available information, including gossip about Petitioner from both the public and private sectors. Gossip is always reprehensible, but people talking about unspecified letters Petitioner wrote without more does not constitute retaliatory discrimination or age discrimination. Whether the situation between Petitioner and TCC had to do with TCC's failure to recruit Petitioner or with Petitioner's complaint about the cost of Respondent's contract with TCC to do its recruiting is unclear in this record. (P-12) (See Finding of Fact 55 above). If anything, the latter is more likely since in his Charge of Discrimination (P-2), even Petitioner described the Radigan memorandum as addressing "a matter only tangentially related to my employment possibilities." Therefore, no retaliation discrimination for raising the issue of age discrimination has been clearly proven.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying and dismissing the Petition for Relief. RECOMMENDED this 14th day of December, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 14th day of December, 1995.
The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Petitioner was employed at Brevard Correctional Institution and was considered by the Department to be qualified for the position for which he was employed. Petitioner is a male, African-American. On October 24 1994, Petitioner received a Written Reprimand for the abuse of the Department's sick leave policy, which had occurred on October 21, 1994, in that Petitioner, while on authorized sick leave on October 21, 1994, attended the Dorothy Lewis trial, without authorization from the Department. Petitioner presented no evidence to show that the Written Reprimand issued on October 24, 1994, was issued because of Petitioner's race or gender; rather it was issued based on a reasonable belief that Petitioner had abused the Department's sick leave policy by attending the Dorothy Lewis trial while out on official sick leave. Petitioner presented no evidence to support the remaining allegations contained in the Petition for Relief filed by Petitioner in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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 18th day of January, 2002. COPIES FURNISHED: Hugh F. Brockington, II 19715 Eagles View Circle Umatilla, Florida 32784 Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether or not an unlawful employment practice pursuant to the Human Rights Act of 1977, Section 760.10 F.S. (1989) has occurred.
Findings Of Fact On the Thursday and Friday preceding formal hearing the undersigned attempted to contact Petitioner to determine if he was prepared for formal hearing on March 4, 1991. His phone was in working order, but no one answered at any of several times the call was placed. At the date and time of formal hearing, Petitioner did not appear, although the hearing was convened after waiting five minutes. A recess was taken for 15 minutes to permit Petitioner additional time to arrive at the place of formal hearing in the event that he had been unavoidably delayed. After waiting those 15 minutes, the undersigned searched the waiting area outside the hearing room for any black male, and none was found. The undersigned also called her DOAH office to determine if Petitioner had attempted to telephone there with any excuse for his nonappearance; the secretary to the undersigned reported that he had not telephoned. At 25 minutes after the appointed hour for commencement of the hearing, Respondent moved for default and/or judgment on the pleadings, and the undersigned indicated that the Recommended Order would reflect, to the same effect, that Petitioner's nonappearance would be deemed withdrawal of his petition.
Recommendation Accordingly, 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 the Petition herein. DONE and ENTERED this 13th day of March, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 13th day of March, 1991. COPIES FURNISHED: J. Robert Duggan, Esquire Howell, Taylor & Duggan, P.A. Post Office Box 490208 Leesburg, FL 34749-0208 Willie Ray Wright 2311 Griffin Road, Apt. A-4 Leesburg, FL 32748 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Tallahassee, FL 32399-1570
Findings Of Fact Petitioner was employed by Respondent from January, 1986, until March 7, 1988. Petitioner worked as a tailor and performed alterations at Respondent's store located in Altamonte Springs. In the latter half of 1987, Mr. Pease became the manager of the Altamonte Springs store and thus became Petitioner's supervisor. As had the prior manager, Mr. Pease and Petitioner worked out a schedule that did not require Petitioner to work in violation of his religious principles. However, relations between Petitioner and Mr. Pease were not good. Shortly after becoming manager, for independent business reasons, Mr. Pease decided to reduce the amount of fitting done in the store. The effect of this decision was to reduce the amount of work available for Petitioner. At about this time, Petitioner suffered an accident unrelated to employment. The accident resulted in an extended absence from work. Petitioner received his physician's approval to return to work on February 16, 1988, but failed to do so. Without prior notice, Petitioner showed up at the store on March 7, 1988, and informed Mr. Pease that Petitioner was ready to return to work. Mr. Pease told Petitioner that the work schedule had already been arranged for the week. Mr. Pease told Petitioner that the only days he could work were Saturday, March 12, and Sunday, March 13. Petitioner told Mr. Pease that he could not work Sundays due to his religious beliefs. Mr. Pease reiterated that no other time was available that week. Petitioner told Mr. Pease that Petitioner understood that he was being fired. Mr. Pease told him that he was not being fired; rather, he was quitting if he left Respondent's employment. Two days later, Petitioner filed for unemployment compensation benefits. He never reported to work with Respondent again. Consistent with his Petition for Relief, Petitioner offered no evidence of discrimination due to national origin. Nothing in the record suggests the existence of any such discrimination. Petitioner has also failed to prove the existence of any religious discrimination. There is no evidence that Mr. Pease refused to try to accommodate Petitioner's religious beliefs with respect to work schedules after the weekend of March 12-13. The only evidence is that when Petitioner suddenly reported to work, the only days immediately available were the weekend days. The record does not even disclose whether Mr. Pease linked the two days, so as to prevent Petitioner from working the Saturday without working the Sunday. There is nothing in the record suggesting that Mr. Pease told Petitioner that if he failed to work the coming Sunday, he would lose his job. In sum, Petitioner has left it entirely to conjecture whether Mr. Pease would have failed to make reasonable accommodation for the religious beliefs of Petitioner. In fact, Mr. Pease was never presented with that opportunity. In addition, Petitioner has produced no evidence that Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. There is no evidence of the number of employees working for Respondent at the relevant time.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 2nd day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5689 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted in substance. 4-5. (first sentence) Adopted. 5. (second sentence) Rejected as irrelevant. 6-10. Adopted. s 11. Rejected as irrelevant. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Weceslao Lugo Palermo 7505 Armstrong Road Lockhart, FL 32810 Richard D. Pease 590 West Highway 436 Altamonte Springs, FL 32714
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on August 27, 2012.
Findings Of Fact Petitioner is a female who has identified her race as Asian and her national origin as Indian. Petitioner’s age was not established in evidence. However, based upon the attachments to Petitioner’s Petition for Relief, Petitioner was identified as 43 years old, presumably at the time she filed the Complaint of Employment Discrimination. There is nothing in the record to indicate otherwise and, based upon observations of her while testifying at hearing, 43 is a reasonable approximation of her age. Respondent, Leon County School Board (LCSB), is an employer within the meaning of the Florida Civil Rights Act. Petitioner has applied for numerous job openings with the School Board over a number of years. However, based upon the applicable statute of limitations as explained more fully in the Conclusions of Law, there are five LCSB job postings that are at issue in this proceeding, one of which was never filled. The job positions applied for are as follows: --Job posting 1071-2012, Custodian position at Nims Middle School. --Job Posting 0170-2012, Instructional paraprofessional position at Sealy Elementary School. --Job Posting 011-2012, custodian position at Rickards High School. --Job posting 0201-2012, Assistant Manager for Extended Day Program at J. Michael Conley Elementary School. --Job posting 0215-2012, Receptionist at Leon County High School. This position was not filled. Petitioner is the mother of two children who are or have been students in the Leon County schools. Petitioner has extensive volunteering experience in LCSB schools. In 2008, she received the Volunteer of the Year award for her volunteer work at Sealy Elementary School. She was invited to and attended the Volunteers of the Year Luncheon in 2008. Petitioner also volunteered at Conley Elementary School in 2011. While Petitioner has considerable volunteer experience in Leon County Schools, she has no job/employment experience since coming to the United States in 1998. Petitioner holds a college degree from Utkal University in India. The unofficial transcript states that it is a “Honours Diploma for Bachelor of Arts (Three Year Degree Course).” Respondent uses the PATS (Paperless Applicant Tracking System) system to accept applications for all job openings within the Leon County School District. Based on information inputted into PATS by applicants, a list of qualified individuals is generated for each position. The PATS system does not ask for or identify an applicant’s age, race, national origin, or sex. Vitalis Dennis is the Director of Human Resources for the LCSB. She has general supervision over the PATS system. According to Ms. Dennis, LCSB does not count volunteer work in evaluating work experience. This is a generally applied policy, applied to all applicants, including Petitioner. Hiring decisions are made by each school’s principal. The school principals send recommendations for hiring to the District Human Resources office. Job Posting 1071-2012 Petitioner applied for job posting 1071-2012, a custodial position at Nims Middle School. At that time, Charles Finley was assistant principal at Nims. He was in charge of interviewing and hiring vacant custodial positions. The executive secretary at Nims printed a list of applicants from PATS. He then accessed PATS to check applicants’ educational and work history to identify applicants with previous custodial work experience. Generally, he would interview eight to 12 applicants. The successful candidate for this position was Eloise Hatten. Ms. Hatten was 52 years of age, is African-American, and is female.2/ Ms. Hatten’s application reflects approximately nine years’ of cleaning commercial/institutional experience. Mr. Finnley interviewed Ms. Hatten and testified that the interview went well. He describes Ms. Hatten, who is still employed at Nims, as tied for the best hire he ever made. Job Posting 0170-2012 Petitioner applied for Job Posting 0170-2012, Instructional Paraprofessional at Sealy Elementary. Demetria Clemons is the principal of Sealy Elementary School. Ms. Clemons receives and reviews the PATS list of applicants. She then makes a list of applicants for her secretary to call to set up interviews. When reviewing the list, she looks to see if any applicant is a veteran. Then she looks to see if anyone on the list had previous work experience with her or was recommended by a colleague. The successful applicant was Alisha Saint Cloud. Ms. Saint Cloud was 24 years of age, is African-American, and is female. Ms. Clemons interviewed Ms. Saint Cloud and offered her the job. Ms. Saint Cloud was selected for this position primarily because she held the position as an annual contract employee the previous school year. Annual contract employees often are given notice letters at the end of a school year, as principals do not know at that time whether they will be able to rehire them for the following school year. If staffing allocations allow, the job is then posted. Ms. Saint Cloud was in that situation when Ms. Clemons hired her for this permanent position. Ms. Clemons knew of Petitioner’s volunteer work at Sealy, but the volunteer work was done in individual classrooms, not directly for Ms. Clemons. Job Posting 011-2012 Petitioner applied for Job Posting 011-2012, custodian position at Rickards High School. Clebern Russell Edwards is the assistant principal at Rickards High School. He made the hiring decision for this custodial position for which Petitioner applied. A list of applicants generated from PATS was printed by the principal’s secretary. He looked to see if any applicants were veterans, then whether any were recommended by colleagues. The successful applicant for that position was Jaterrius Robinson. Mr. Robinson was 23 years of age, and is an African-American male. Mr. Robinson had institutional/ Commercial-cleaning experience and was a graduate of Rickards High School. Mr. Edwards believes that it is important to have someone with experience cleaning in an environment similar to a school in such a position. Mr. Edwards took into consideration Mr. Robinson’s work experience, being an alumnus of Rickards, and his outstanding interview when making the decision to hire Mr. Robinson for the job. Job Posting 0201-2012 Petitioner applied for job posting 0201-2012, assistant manager for the Extended Day Program at J. Michael Conley Elementary School. Danielle Dielbeck is the Extended Day Manager at Conley Elementary School. She is responsible for hiring the Extended Day personnel and supervising those employees. Jeremy Rollins was the successful applicant for this position. Mr. Rollins was 23 years of age, and is an African- American male. Ms. Dielbeck reviewed the PATS list of applicants to determine who would be a good fit for the job. She also takes into consideration any recommendations that may come from other schools. Mr. Robinson has work experience as an after-school teacher. Ms. Dielback selected Mr. Robinson because of his experience as an after-school teacher in another program with a large number of students, and because he also had experience as a cashier for a grocery company. Ms. Dielbeck believed his cashier experience demonstrated that he had experience handling money. She determined that this was a benefit because the Extended Day Program is responsible for its own budget. Petitioner’s assertions Petitioner strongly believes that LCSB has systematically discriminated against her by not hiring her. She believes that LCSB is harassing her personally, including an unnamed person parking her car outside the Rath’s home and taking photographs.3/ However, there is no competent evidence to support her subjective belief that the person in the car has anything to do with LCSB. There is no competent evidence in the record that supports any coordinated efforts or conspiracy by LCSB personnel to deny her employment. Each person with the responsibility to make hiring decisions did so independently.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that the Leon County School Board is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Complaint of Employment Discrimination. DONE AND ENTERED this 29th day of October, 2013, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2013.
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black female. As such, she is a member of a protected class. Respondent is a rental and sales company. It rents and sells household furnishings and appliances to consumers. Around the end of June 2008, Petitioner was hired by Respondent as an account manager at its Crawfordville store. Petitioner’s scheduled start time was 7:30 a.m. Petitioner’s account manager duties included delivery of household furniture and appliances to customers, loading and unloading her truck, and collection of money (also known as collecting credits) from customers. Petitioner’s primary delivery route was the south side of Tallahassee, Florida. Her direct supervisor at the Crawfordville store was James Shaw. Mr. Shaw is a Black male. Petitioner alleged that in July 2008, James Shaw began to sexually harass Petitioner, inviting her to a hotel and on one occasion, locking her in the store, pushing her against some furniture, and groping her. Shortly after allegedly being groped, Petitioner reported the incident to Craig Carricino, Store Manager at RAC’s Tallahassee store, and Kevin Besette, the then District Manager. She also called RAC’s complaint hotline. Petitioner reported the incident to Mr. Carricino because she knew him from past dealings with him at the Tallahassee store and felt more comfortable reporting the incident to him. Petitioner made it clear that she did not want to return to the Crawfordville store and desired to be transferred to another location. On the day of Petitioner’s complaint, Brad Donovan, Coworker Relations Manager, initiated an investigation into Petitioner’s claim. Additionally, Mr. Donovan was aware of Petitioner’s desire to transfer to another store and immediately offered Petitioner the opportunity to transfer to RAC’s Tallahassee location. Petitioner readily accepted the offer and was transferred to the Tallahassee store where Mr. Carricino was the manager. After Petitioner’s transfer, Mr. Donovan proceeded with his investigation into her allegations of harassment. He interviewed Mr. Shaw, who denied Petitioner’s allegations. He interviewed Petitioner, who provided him with the name of a witness to Mr. Shaw’s sexual advances. Mr. Donovan interviewed this other witness. The witness reported that he had not seen any inappropriate conduct on the part of Mr. Shaw towards Petitioner. Petitioner never advised Mr. Donovan or any other person at RAC of any other witnesses to the alleged sexual misconduct of Mr. Shaw. In essence, Petitioner’s allegations could not be established because no independent evidence existed to support her allegations of sexual harassment. However, Respondent promptly addressed Petitioner’s allegations of sexual harassment. It investigated her claims and immediately transferred her to another store. Respondent also counseled Mr. Shaw about sexual harassment, but took no further action against him because of the absence of any independent evidence to support Petitioner’s allegations. Clearly, Respondent exercised reasonable care to prevent and promptly address Petitioner’s allegations of sexual harassment. Irrespective of whether Petitioner’s allegations against Mr. Shaw are true or believed, RAC did not engage in an unlawful employment action against Petitioner because it acted appropriately in addressing Petitioner’s allegations based on the investigation and conclusions it had reached about Petitioner’s allegations. RAC was not obligated to do more even if Petitioner disagreed with the company’s decision not to discipline Mr. Shaw. After her transfer, Petitioner felt she was harassed/retaliated against by Mr. Carricino when she was “written up” for being late to work. Petitioner identified Scott Taff, who is White, as the only non-minority employee who had allegedly been treated differently than her. She based her assertion on the fact that Scott Taff was not fired when he was late after being ‘written up’ for tardiness. Without going into the mostly hearsay evidence presented at hearing, Petitioner’s own testimony revealed that she was not fired for being late several more times after being ‘written up’ and warned for such tardiness. Additionally, there was no evidence presented regarding Mr. Taff’s disciplinary history or that he had a chronic tardiness problem. Given these facts, the evidence did not demonstrate that non-minority or male employees were treated differently than Petitioner. The evidence, also, did not demonstrate that Petitioner was subjected to any retaliation for her earlier sexual harassment complaint. The evidence did show that her employer wanted her to be at work on time and endeavored to stress its desire to her. Such action does not constitute an unlawful employment practice, especially when the employee has a tardiness problem. Petitioner also alleged she was harassed/retaliated against when she was told that she would have to lift 150-lb. sofas, and, if she complained about the duty, she would be fired. Petitioner did not testify about any specifics regarding this allegation. However, Petitioner’s job required that she be able to deliver a variety of products made available by Respondent, including sofas. Moving furniture, loading and unloading her truck, and picking up and delivering furniture was not specifically required of Petitioner, but was required of all similarly-situated account managers. By her own testimony, Petitioner described times when she had help in moving furniture and times when she did not have help in moving furniture. The store’s manager testified that Petitioner, like other employees, received help moving furniture when other employees including himself, were available to help and not performing their own similar job duties. There was no credible evidence that Petitioner was denied help moving furniture based on her race, sex or in retaliation for her earlier allegations of sexual harassment. Finally, Petitioner alleged that she was harassed/retaliated against when she was not allowed to “collect credits” from customers because she was sent on deliveries and later disciplined for not “running these credits.” However, all account managers were required to collect money from customers and make deliveries. Petitioner was not singled out in being required to collect money from customers and make deliveries. All account managers had to figure out how to perform both functions. Petitioner’s testimony regarding being prohibited from collecting money on Saturday was not established by the evidence. The evidence showed that, for a short time, account managers were instructed not to use the computer system on Saturday mornings to help them in collecting money from customers because of some issue related to the computer system. However, the policy later changed to allow account managers to use the computer system on Saturday mornings. Moreover, there was no evidence that Petitioner could not otherwise collect money from customers without the aid of Respondent’s computer system. The computer may have made the collection process easier because customer contact information was stored in the computer system; however, the lack of use of that system on Saturday mornings did not prevent Petitioner from collecting money from customers. Customer information was available to Petitioner during the rest of Respondent’s time at work. Petitioner, again without any necessary specifics, claims that Mr. Taff was allowed to collect money on Saturdays. No computer records were introduced into evidence and no evidence of the time period when Mr. Taff allegedly collected money on Saturdays was adduced at hearing. Respondent denied that Mr. Taff collected money when he was not supposed to. The evidence did not demonstrate that Mr. Taff or any other similarly-situated employee was treated differently than Petitioner. The evidence did demonstrate that Petitioner had the lowest collection rate at the Tallahassee store and was consistently below that store’s standard for the collection of money. The District manager, Carney Anderson, who is Black, testified that he had no trouble meeting company expectations for collecting money from customers when he was an account manager in a similar, but larger, area and saw no reason why Petitioner could not meet the expectations of the company in the area she was assigned in Tallahassee. Petitioner did not perform up to the Respondent’s standards for the collection of money from customers. Importantly, a former male employee who failed to adequately collect money from customers was similarly disciplined for failing to perform this important job duty. Because Petitioner failed to meet the standards of the Respondent for the collection of money from customers, Mr. Carricino informed Petitioner that she would be terminated for her inability to meet those standards. Mr. Carricino offered Petitioner the option of resigning and assured her that he would provide a favorable recommendation to her, if she did. Petitioner elected to resign and wrote a letter of resignation. The letter did not mention discriminatory or retaliatory treatment and read as follows: “Thank you for everything. I am grateful for the opportunity that you gave me to work at Rent-a-Center, but at this time, I am unable to perform my duties as a mother to my kids due to the overwhelming hours. I am giving my two weeks notice today 11/10/08 in hopes of returning one day in good standing.” Mr. Anderson, who worked at the Tallahassee store every Monday, spoke with Petitioner about the basis of her resignation. She did not mention any belief she had that she had been retaliated or discriminated against. During Petitioner’s final two weeks, Mr. Anderson noticed a serious decline in Petitioner’s attitude and a decline in her work performance. He was not surprised because he had seen other short-term employees have a similar decline. Therefore, on November 15, 2008, Mr. Anderson instructed Mr. Carricino to terminate Petitioner’s employment immediately and Petitioner was terminated that day. There was no evidence that Respondent’s reason for terminating Petitioner was false or a pretext to hide discriminatory or retaliatory behavior. Moreover, given the short time that Petitioner had remaining at RAC and the fact of her resignation; the evidence did not demonstrate that Petitioner suffered an adverse employment action when she was terminated early during her final two weeks with RAC. Given these facts and the lack of evidence to support Petitioners allegations, the Petition for Relief should be dismissed.
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 30th day of September, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2009. COPIES FURNISHED: Massa Dionna Hill 1613 Quazar Road Tallahassee, Florida 32311 Andrew Trusevich, Esquire Rent A Center, Inc. 5501 Headquarters Drive Dallas, Texas 75024 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Miami-Dade County (County), discriminated on the basis of age in violation of the Florida Civil Rights Act (FCRA), when it did not hire Petitioner, Omar Garcia, Jr.
Findings Of Fact Petitioner is a 54-year-old male who submitted over 300 job applications to the County from May 2018 to August 2019. The County is a political subdivision of the State of Florida. It has approximately 25,000 full time employees and 3,000 part time employees. The County is an "employer" as defined by section 760.02(7). Between January 2018 and the date of the hearing, the County received over 820,000 applications for employment vacancies. Less than one percent of these applications resulted in an applicant being hired by the County. In other words, over 99 percent of the applications submitted to the County were rejected. Although Petitioner's resume and employment applications were not entered in evidence, Petitioner testified he holds a business administration degree from California State Polytechnic University Pomona. He also had 27 years of experience as a federal law enforcement officer, including with the United States Department of Homeland Security (DHS). Petitioner resigned from DHS in lieu of termination after he was arrested on a domestic violence charge. That charge was eventually nolle prossed. He did not reveal to the County that he had resigned in lieu of termination from the DHS position, or that he had been arrested or charged with domestic violence. Again, because the applications were not in evidence it is unclear if Petitioner was required to disclose this information. Prior to resigning from DHS, Petitioner began applying for positions with the County in May 2018. Petitioner was not discerning in selecting the positions for which he applied. He submitted applications for a wide assortment of occupations including administrative, clerical, financial, law enforcement, and human resource positions. The specific positions included, but were not limited to, the following: Account Clerk, Administrative Secretary, Airport Operations Specialist, Aviation Property Manager, Bus Stock Clerk, Contracts Officer, Corrections Officer, Finance Collection Specialist, Fleet Management Specialist, Library Assistant, Fire Investigator, Paralegal, Real Estate Advisor, Risk Management Representative, Tax Records Specialist, Storekeeper, Victim Specialist, and Water and Sewer Compliance Specialist. Submitting an application is the initial step in the County's hiring process. Once the application is received, it is screened by a computer software system to determine whether the applicant meets the minimum eligibility requirements of the position. The County's Human Resources department forwards those applications deemed "eligible" to the County department hiring for the position. The hiring department then reviews the applications sent by Human Resources to determine if the applicant is "Qualified." To be "Qualified," an applicant must meet the minimum eligibility requirements, and then specific qualifying criteria imposed by the hiring department. For example, for a secretarial position the County may receive 500 eligible applications for one position, but cannot interview all 500 applicants. To whittle down the applicants, the hiring department may have additional requirements such as a certain number of years of secretarial experience, or experience in specific professional areas. The hiring department interviews those applicants with the best qualifications and/or most relevant experience. The unrebutted evidence established that an interview is required prior to selection for a position. Failure to attend an interview would ruin the applicant's chances to be hired. Out of the approximately 300 applications Petitioner submitted for various positions, he met the minimum eligibility requirements for 96.3 Out of the 96 applications forwarded by Human Resources, Petitioner was deemed by the hiring departments to be "Qualified" for 60 positions, and deemed "Not Qualified" for 36 positions. Of the 60 for which he was deemed "Qualified," he was offered interviews for two positions in law enforcement. Of the two interviews he was offered, he only attended one.4 There was no evidence that anyone in the County's hiring process knew Petitioner's age. The County established that it does not ask for applicants to reveal their age on the County job application, nor is the age or date of birth transmitted to the hiring department. There was also no evidence of the ages of the selected applicants who filled the specific positions for which Petitioner applied.5
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 Omar Garcia's Petition for Relief. DONE AND ENTERED this 7th day of December, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 7th day of December, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Marlon D. Moffett, Esquire Miami-Dade County 27th Floor, Suite 2810 111 Northwest 1st Street Miami, Florida 33128 (eServed) Omar Garcia 4670 Salamander Street Saint Cloud, Florida 34772 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, 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 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
