The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of religion; or in retaliation to his engagement in a lawful employment activity, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent, Escambia County, is a political subdivision of the state of Florida that is authorized to carry out county government, pursuant to section 125.01, Florida Statutes (2016). Escambia County is an employer as that term is defined by the Florida Civil Rights Act 1992. Petitioner, Mr. Love, was employed by Blue Arbor, Inc., a staffing agency. Blue Arbor had a contract with Escambia County for temporary labor services. Blue Arbor assigned Mr. Love to a temporary job with Escambia County, Public Works Department, Office of Engineering and Construction, as an engineering project coordinator. The assignment was for one year. Petitioner was assigned to the job from May 26, 2014, until his termination. On January 26, 2015, Escambia County terminated Petitioner’s temporary employment contract. Petitioner was an employee of Escambia County as that term is defined by the Florida Civil Rights Act of 1992. Mr. Love is a Christian. Petitioner timely filed a complaint with the Commission alleging Respondent engaged in an unlawful employment practice by terminating Petitioner on the basis of his religion. As an engineering project coordinator, Petitioner’s job responsibilities included: management of complex projects, ability to prioritize work, and ability to exercise good interpersonal skills with co-workers, supervisors, and the public. Mr. Love earned a Bachelor of Science in Engineering Technology and Construction degree in December 2013. Mr. Love had no prior drainage or roadway experience before working for Escambia County. Mr. Love began working for Escambia County following a storm that was declared a disaster. Due to the disaster, staff was expected to be flexible and able to perform job duties without refusal or hesitation. Respondent asserts that it terminated Petitioner’s contract due to his inability to perform job responsibilities without objection or hesitation, work performance, and disruptive behavior. Mr. Love had multiple supervisors during his eight month tenure at Escambia County. While working at Escambia County, Mr. Love’s supervisors had issues with his work performance and his behavior. Mary Bush, a construction manager, supervised Mr. Love in 2014. Ms. Bush had issues with Mr. Love’s file storage practices and behavior. Ms. Bush testified that Mr. Love saved all his work on a personal computer and was told several times to save his work in the shared folder. Mr. Love refused to save his work on the shared drive on the basis that the documents were his work. During the time Ms. Bush supervised Mr. Love, she experienced two incidents with Mr. Love involving outbursts. On one occasion, Mr. Love was in Ms. Bush’s office seeking review of Mr. Love’s work. Mr. Love stated in a raised voice, “you need to review the report so I can do my job.” On another occasion, Ms. Bush directed Mr. Love to identify his documents using a certain description and explained the importance of the practice. Mr. Love objected on the basis that the practice was an asinine process. Mr. Love was reassigned to another supervisor due to the outbursts involving Ms. Bush. At no point did Mr. Love state that his objection to following directions was based on his religion. Chris Curb, an engineering manager for stormwater, also supervised Mr. Love during his tenure at Escambia County. Despite the direction from Ms. Bush, the file-sharing issue continued. On December 30, 2014, Chris Curb notified Mr. Love by email that his file saving was a “problem.” Mr. Curb advised Mr. Love that his file folder was not a standard subfolder and he needed to save all files in the proper shared subfolders. He explained that file sharing is important so Escambia County could comply with state regulations and records requests. He further explained that Mr. Love was not the sole owner of a project record because other employees would need access to the work. He concluded his email with instructions for Mr. Love to use designated file folders. A third supervisor, Jim Duncan, also had issues with Mr. Love’s work performance and behavior. Similar to his practice under prior supervisors, Mr. Love refused to save his files to the shared file folder. Mr. Love also repeatedly refused to attend mandatory meetings without a direct command. For example, on multiple occasions Mr. Love’s supervisor had to locate and direct him to attend the weekly department meetings. Mr. Love testified that he was reluctant to attend the meetings because he believed they “were unproductive and take up too much time.” Similar to other supervisors, Mr. Love engaged in an outburst with Mr. Duncan. Mr. Duncan was a construction manager when he supervised Mr. Love and thus, was responsible for directing Mr. Love to advance projects from conception to completion. One such project was ENG Flood 414-85, which was also referred to as the Beulah Road at Helms Intersection project (“Beulah-Helms project”). Mr. Love was the project coordinator for the project. In October 2014, Roads, Inc., a construction company, submitted a bid for the Beulah-Helms project. Brett Moylan is the vice-president and chief operating officer of Roads, Inc. The project was a pricing agreement contract. Pricing agreement contracts are contracts where prices are established for a period of one year and are adopted by the Escambia County prior to the award of any specific pricing agreement contract. Pricing agreements have a blackout period and bidding process that also takes place prior to acceptance of the pricing agreement. In December 2015, Mr. Love was in the final stages of the procurement process for the Beulah-Helms project. Roads, Inc. was the lowest bidder on the project. Mr. Love corresponded with Mr. Moylan regarding the documents necessary to approve the project. Mr. Love requested a construction schedule and MOT plan for the project before the work order could be approved. Mr. Moylan asserted in an email that the construction schedule would begin after the purchase order is issued. Mr. Moylan later submitted the MOT plan and signed the work order. On January 22, 2015, Mr. Love sent an email to Mr. Moylan requesting the construction schedule and another signed work order with the appropriate dates. Mr. Love advised Mr. Moylan that he would not begin the project until Mr. Moylan submitted the construction schedule. Although Mr. Moylan explained that he usually did not submit a construction schedule, he ultimately provided the construction schedule to Mr. Love indicating that the project would begin the following Monday and “be substantially complete within 60 days of commencement, and have a completion date within 90 days.” The construction schedule provided by Mr. Moylan was an acceptable schedule. For a reason that was not addressed at hearing, Mr. Love asked Mr. Moylan for the construction schedule again, despite receiving it. Mr. Moylan advised Mr. Love to accept the next lowest bidder. As a result of the email exchange with Mr. Moylan, Mr. Love planned to send Mr. Moylan a follow-up email about accepting the next highest bidder, which would purportedly cost Escambia County an additional $20,000 for the project. Before Mr. Love drafted the email, he called Mr. Moylan to discuss the issues referenced in the email. Mr. Love testified that before he called Mr. Moylan he “drove around the block a couple of times, before he could call Mr. Moylan because [he] knew that the conversation was going to get heated.” Mr. Love described the conversation as heated, and they “cut each other off” during the conversation. Mr. Moylan contacted Mr. Duncan to complain about Mr. Love’s behavior related to the Beulah-Helms project. Mr. Duncan approached Mr. Love to discuss the exchange between Mr. Love and Mr. Moylan. Mr. Duncan directed Mr. Love to award the Beulah-Helms project to Roads, Inc. Mr. Love objected to awarding the contract to Roads, Inc. He testified that his objection was based on his religion because “[he] had an obligation to utilize his moral and ethical judgment which is inherent to [his] religion.” Mr. Love stated that the religious accommodation was based on his request for additional information before he could feel comfortable awarding the project to Roads, Inc. Mr. Love testified that he told Mr. Duncan that he refused to award Roads, Inc., without the construction schedule “based on a matter of principal.” Mr. Love did not say he refused to approve the project based on his religion. He did not say he needed an accommodation for his religion. Mr. Duncan directed Mr. Love not to take any further action until they discussed Mr. Love’s objection with the department manager, Joy Jones. During the conversation, Mr. Love became angry and yelled at Mr. Duncan. Sharon Johnson, a project coordinator, witnessed the exchange between Mr. Love and Mr. Duncan. Specifically, Ms. Johnson observed Mr. Love and Mr. Duncan having the discussion about the Beulah-Helms project. Ms. Johnson described Mr. Love’s demeanor as unhappy and upset. She testified that he raised his voice and yelled at Mr. Duncan. At the same time, Mr. Duncan attempted to calm Mr. Love. Ms. Johnson could not recall the substance of the discussion, but she testified without hesitation that Mr. Love did not mention anything about his religion. Ms. Johnson’s testimony is found to be credible. On January 26, 2015, Escambia County terminated Petitioner’s contract. Joy Jones, the Engineering Department manager, made the final decision to terminate Mr. Love’s contract. Although Ms. Jones did not directly supervise Mr. Love, she was aware of the issues concerning his work performance and behavior through complaints from her staff who directly supervised Mr. Love. After several complaints of angry outbursts, difficulty meeting deadlines, failure to save critical documents to the shared drive, inability to move projects in the process without reluctance, and inability to work with several supervisors, Ms. Jones made the decision to terminate Mr. Love’s contract. Based on the evidence, Respondent has demonstrated that Mr. Love’s termination was based on a legitimate business decision due to poor work performance and disruptive behavior. Approximately one year after his termination, Mr. Love sent an email to the Escambia County Administrator, Jack Brown. The email complained of perceived damage to Mr. Love’s reputation, credibility, and career. Mr. Love did not mention any complaint of religious discrimination or retaliation. In his response to Mr. Love, Mr. Brown explained that “in the project coordinator position staff must examine and thoroughly understand applicable process. Refusal and hesitation to perform job duties affect production, grant reimbursement deadlines, and citizen expectations.” Mr. Love did not explicitly mention anything about his religion or religious discrimination to any of his supervisors before he was terminated from Escambia County.
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 Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 May, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Benjamin David Love Post Office Box 1132 Gonzalez, Florida 32560 (eServed) Meredith D. Crawford, Esquire Escambia County Board of County Commissioners Suite 430 221 Palafox Place Pensacola, Florida 32502 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner was employed by Respondent at various times beginning in February 1999 and ending in her termination effective September 30, 2004. Respondent is an employer within the meaning of the Florida Civil Rights Act. At all relevant times, Respondent is in the hotel business. Respondent provides related services and amenities to its guests and to the general public, including a restaurant and bar on the hotel premises. Petitioner commenced her employment with Respondent as a waitress and was eventually promoted to bartender. At all relevant times, she worked under the supervision of Kurt Pfister (Pfister). At no time prior to the commencement of her employment, nor at any time during her employment, did Petitioner advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Likewise, Petitioner never advised Respondent that she had ever been diagnosed, treated, or hospitalized for any medical condition or disability. In fact, as Petitioner herself admits, she first claimed to be disabled approximately two weeks after she was terminated. Petitioner, as well as all of Respondent's employees, were trained in and required at all times to follow all of Respondent's policies and procedures generally applicable in its workplace. Additionally, every employee was trained in and expected to comply at all times with all policies and procedures applicable to his or her particular job. Violation of any of Respondent's policies or procedures subjected an employee to disciplinary action ranging from counseling to termination. As a bartender, Petitioner was trained and responsible for taking food and beverage orders; to present patrons with their bill(s); and to collect an approved form of payment, including cash. With regard to cash, Petitioner was trained in Respondent's policies and procedures known as "cash control policies." Cash control policies included a specific process for reconciliation of cash and tips at the end of each shift and a process for making cash drops and filling out deposit logs. Petitioner and all similarly situated employees were required to comply with cash control policies and were subject to disciplinary action up to and including termination if they failed to do so. Petitioner was qualified for her bartending position, and from the beginning of her employment through September 16, 2004, Respondent was well satisfied with Petitioner's work. Petitioner was often called upon to train new bartenders with regard to Respondent's policies, including cash control policies. She did so very well. For her efforts, Petitioner achieved the status of Respondent's most senior bartender, and as a reward was given the best shifts. Respondent enforced a policy against smoking on its grounds, except that smoking was permitted in a small, outside area at the south end of the premises. Petitioner was well familiar with the smoking policy and to Respondent's knowledge, complied with it until September 16, 2004. On that date, Petitioner was discovered smoking in a liquor storage room located inside the hotel building. She was given a written reprimand. Apart from the smoking infraction, Petitioner's September 16, 2004, shift was uneventful. She gave no indication to her customers or supervisors that she was in distress or could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job. Yet, on that night, Petitioner failed to follow cash control policies at the end of her shift. Of most concern to Respondent was that Petitioner left work with her cash sales short for the evening in the amount of $97.64. On September 17, 2006, Pfister learned of the policy violations and the attendant cash shortage; he thereupon contacted Petitioner by telephone. Petitioner again did not indicate to Respondent that she could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job and to comply with cash control policies. Petitioner conversed normally with Pfister and acknowledged that she had the $97.64 belonging to Respondent. Although she was not scheduled to work again until September 21st, she agreed to meet with Pfister and to return the money on September 19, 2004. Petitioner did not show up for the meeting. Neither did she return the money, or contact Pfister to advise when, or if, she would return the money. Respondent was entitled, at that point, to treat the matter as a theft; to terminate Petitioner's employment; and to seek law enforcement's assistance in recovering its money. Instead, Respondent exercised forbearance and gave Petitioner an indefinite suspension to afford her additional time to return the money and to explain to Pfister her reason(s) for failing to follow cash control policies on September 16, 2004. Respondent enforced a policy it called the no-call, no-show rule. Under the rule, employees are required to provide Respondent with four hours’ notice if for any reason they are unable to report on time for a scheduled shift. Absent extraordinary circumstances, which do not exist here, failure to provide the required notice is ground for disciplinary action. On September 21, 2004, and again the next day, Petitioner failed to report for her scheduled shift(s). She also failed to fulfill the four-hour notice requirement of the no call, no-show rule. For these two violations of the no-call, no-show policy, Petitioner was given a written warning. On September 23, 2004, Petitioner telephoned Pfister from an undisclosed location and advised she could not work previously scheduled shifts for the balance of the week. At first, Petitioner claimed she wanted time off on account of her “health.” Pfister offered her the opportunity to submit medical documentation in support of her request. At that point Petitioner stated that she was not seeing a doctor(s), and further stated that she was out of the state with her boyfriend. Petitioner added that she did not care about the hotel; that she was going to take care of herself first. Pfister responded that Petitioner should call him upon her return to town because the issue concerning the $97.64 could not remain unresolved. In the course of this conversation, Petitioner did not advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Petitioner's next contact with Respondent was on September 29, 2004, when Petitioner called Pfister and said she was back in town and wanted to meet with him. It was agreed the meeting would take place the following day at 1:00 p.m. and would also be attended by Rick Reilly (Reilly), Respondent’s senior vice president. Petitioner did not arrive at the appointed time and did not call to explain her absence. Instead, she arrived at 2:10 P.M. Petitioner smelled of alcohol; she swayed, staggered, and slurred her speech. She was profane and belligerent. Petitioner again failed and refused to return Respondent's money or to explain why she took the money. As previously and repeatedly noted, Petitioner did not take this opportunity to advise Respondent that she was disabled in any way, or required any type of accommodation(s) for any medical condition or disability in order to perform her job. She did, however, state that she was "not coming back" and demanded a paycheck and vacation pay. Reilly asked her if she was resigning and she replied, "I guess so." Fearing that Petitioner would attempt to deny or to retract her ambiguous resignation when she sobered up, Pfister and Reilly made a reasonable determination, based upon legitimate non-discriminatory business reasons, to terminate her employment effective September 30, 2006. The termination was not pretextual. There was no evidence regarding who, if anyone, replaced Petitioner. There was no evidence Petitioner was, at any time, treated less favorably than any similarly situated co- worker on account of her membership in any protected class, or for any other reason. Petitioner did not dispute that Respondent had no reason, at any relevant time, to believe she needed accommodations of any sort to perform her job. On October 15, 2004, Pfister received a fax from Petitioner requesting a "leave of absence, medical reason." In apparent support thereof, Pfister also receive a fax purporting to be from a doctor and further purporting to provide a medical explanation for Petitioner's request for "leave of absence, medical reason." In the latter fax, a representation was made that Petitioner was presently hospitalized for "an undetermined amount of time" due to "depression symptoms for the last several month (sic) in context of stressors related to her job and impending hurricanes." This information, such as it was, was untimely and was insufficient to cast doubt upon the bona fides of Petitioner's termination. On November 1, 2004, Petitioner came to Pfister's office to pick up her check(s) and, at last, to return Respondent's money. She made no comment or complaint regarding any alleged disability; neither did she indicate in any way that she believed herself to be a victim of discrimination. In sum, Petitioner could have been terminated as early as September 16, 2004, for legitimate non-discriminatory business reasons. There is no persuasive evidence that disability played any role in Petitioner's termination. Indeed, there was no persuasive evidence that Petitioner was, at any time, disabled within the meaning of the Act, or within the meaning of any other state or federal law. There was no evidence that Petitioner was replaced by a non-disabled individual, nor that she was, at any time, treated less favorably than any similarly situated co-worker.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is RECOMMENDED that the FCHR issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2006.
The Issue Whether Respondent, AAR Airlift Group, Inc. (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, Gabriel C. Gaudio (Petitioner), be granted.
Findings Of Fact Petitioner is a male over 50 years of age. On or about May 9, 2009, a company located in North Carolina hired Petitioner to work as a Technical Publications Clerk. Petitioner was over 40 years of age at the time of his employment. Prior to March 2012, Petitioner relocated to Florida to continue employment with the company that then became known as AAR Airlift Group, Inc. Respondent does business in Melbourne, Brevard County, Florida, and has over 15 employees, one of whom was Petitioner. At all times material to this matter, Respondent employed Steve Lane (Lane) and Melvin Zahn (Zahn) as supervisors with the company. At all times material to the allegations of this case, Respondent had policies that prohibit discrimination on the basis of age, disability, and any other reason prohibited by law. Any employee who believed discrimination had occurred was directed to report to the local Human Resources Department or to the Corporate Vice President of Human Resources. Respondent’s employees are considered “at will.” Respondent reserves the right to involuntarily terminate any employee for any reason or for no reason unless to do so would violate law. Petitioner maintains he was terminated in retaliation for a complaint he submitted because of his age, or because of his disability. All of the actions complained of occurred between March 2012 and June 2012 (when Petitioner was terminated). It is undisputed that Petitioner’s age would establish he is a member of a protected class. It is undisputed that Petitioner was terminated after he submitted a complaint against his co-workers. Although Petitioner asserted he is disabled, Petitioner presented no evidence to establish the nature of his disability or that Respondent required him to perform tasks contrary to his physical or mental limitations. There is no evidence that Respondent failed to accommodate any claimed limitation Petitioner might have had. In April 2012, Respondent issued a Performance Improvement Plan (PIP) to Petitioner to outline areas of his job performance that needed improvement. It was anticipated that Petitioner would address the areas of concern and make improvement within 90 days. Upon receipt of the PIP Petitioner filed a claim of hostile work environment with the company’s human resources office. More specifically, Petitioner claimed two employees, Zahn , technical publications manager, and Rachel Grygier (Grygier), a technical publications librarian, had disparaged him regarding his age and disability. To address Petitioner’s complaint, Respondent initiated an internal investigation of the claim. As part of the investigation process, Respondent directed Petitioner not to disclose or discuss the accusations of his claim with anyone. Respondent sought to resolve the matter without having the allegations discussed among employees before individual statements could be taken. Contrary to the directive, Petitioner discussed his complaint against Zahn and Grygier with at least one other employee. That employee (Barnett) e-mailed support for Petitioner to JoAnne Paul (Paul), Respondent’s human resources compliance manager. When Paul confronted Petitioner as to whether he had discussed his complaint with Barnett, Petitioner falsely denied knowing Barnett. Paul took Petitioner’s failure to maintain confidentiality regarding his complaint to Lane, Respondent’s director of quality assurance and internal evaluations. Together, Paul and Lane decided to terminate Petitioner. The basis for the termination was two-fold: the failure to follow a directive not to discuss the complaint; and the lack of truthfulness when asked about knowing Barnett. Petitioner maintains that his termination was in retaliation for his complaint against Zahn and Grygier and that the company wanted him out. Petitioner presented no evidence that after his termination he was replaced with a younger employee. Even though Petitioner did not establish the nature of his disability, Petitioner presented no evidence that he was replaced by a non-disabled person or that his handicap caused Respondent to terminate him. Further, Petitioner did not establish that any area of concern noted in his PIP related to his disability. Neither Zahn or Grygier had anything to do with Petitioner’s termination. Finally, Petitioner failed to present credible evidence that filing a complaint against Zahn and Grygier was the genesis for his termination. Petitioner was a long-time employee with the company. He had started in North Carolina and moved to Melbourne with the company. Had Respondent wanted to terminate him for any reason it could have done so prior to the move or after the move. Petitioner’s claim that his complaint against Zahn and Grygier caused the termination is not supported by the weight of persuasive evidence.
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 31st day of May, 2013, 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 31st day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Gabriel Gaudio 259 Abernathy Circle, Southeast Palm Bay, Florida 32909 Chelsie J. Flynn, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 16th day of April, 2015.
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2004.
The Issue Whether the Petitioner, Linda Cattanach, was subject to an unlawful employment practice by Respondent, Florida Department of Elder Affairs, based on her sex or in retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes (2013).2/
Findings Of Fact Petitioner, Linda Cattanach, was at all times relevant hereto an employee of the Florida Department of Elder Affairs. Respondent, Florida Department of Elder Affairs (Respondent or Department), is the state agency responsible for administering human services programs for the elderly and for developing policy recommendations for long-term care. See § 430.03, Fla. Stat. (2015). Respondent operates a Comprehensive Assessment and Review for Long-Term Care (CARES) program to assess individuals for Medicaid long-term care services, whether in a nursing facility, in a private home, or in another community setting. The CARES program operates 19 offices statewide and one central office in Tallahassee. Medical assessments are conducted by CARES Assessors (CAs), and Senior CAs. CAs and Senior CAs are supervised by a Program Operations Administrator (POA) in each office, who reports to a Regional Program Supervisor (RPS). The RPS reports to the Deputy Bureau Chief in Tallahassee, who reports to the Bureau Chief; who, in turn, reports to the Division Director for Statewide and Community- Based Services. In January 2013, Petitioner began employment as a CA in Respondent’s Gainesville office. Petitioner began in a one-year probationary employment status. The record did not clearly establish how many individuals were employed in the Gainesville office with Petitioner. There was an office assistant, Rose Gonzalez; at least four other CAs, including Justin Keels; a registered nurse; and their supervisor, POA Sam Rutledge. Freadda Zeigler was the RPS for the region, which included the Gainesville, Tallahassee, Pensacola, Jacksonville, and Daytona Beach offices. Ms. Zeigler commuted from her home in Broward County. In Tallahassee, Jay Hudson was the Deputy Bureau Chief, Paula James was the Bureau Chief, Carol Carr was the Deputy Division Director, and Marcy Hajdukiewicz was the Division Director. The Gainesville territory covered from Marion County north to the Florida/Georgia line, west to the Leon County line, and east to the Duval County line. CAs were assigned to particular locations within the office’s jurisdiction. CAs traveled to both health care facilities (e.g., nursing homes, assisted living facilities) and private homes to meet with and personally evaluate the needs of the client. Petitioner was primarily assigned to cover facilities in Jasper, Live Oak, Dowling Park, Mayo, and Lake City. Petitioner was in the field conducting evaluations two to three times per week. Her assignments required some long commutes, up to one and one-half hours to Jasper (just south of the Georgia line) and over an hour to Dowling Park and Live Oak. In February 2013, a senior CA position became open in Gainesville. Both Petitioner and Mr. Keels applied and were interviewed for the position. Mr. Keels was selected for the position in March. As senior CA, Mr. Keels did not supervise other CAs in the Gainesville office, but was “put in charge” when Mr. Rutledge was out of the office. When Petitioner began her employment in Gainesville, she was told that a desk was being ordered for her. She was given a folding table to use in her workspace. Petitioner’s workspace was in an open area of the office. Other employees would pass through and occasionally gather in her workspace on breaks or on their way to lunch. Petitioner testified that Mr. Rutledge often came into the open area to interact with other employees around lunchtime to see if anyone wanted to “get food.” Sexual Harassment Claim4/ One day in late March 2013, Mr. Rutledge and Mr. Keels were in Petitioner’s workspace and began discussing a restaurant with the word “cooter” in its name. During this conversation, the two men stood on opposite sides of Petitioner’s worktable, where Petitioner was seated. One of the men asked Petitioner if she knew what the word “cooter” meant, and she responded that she did not. One of the men stated that it meant “vagina.” Petitioner testified that she was embarrassed, uncomfortable, and felt trapped at her worktable where the men stood on either side of her. Petitioner did not report this incident to anyone at first. Petitioner testified that she was afraid that if she said anything, she would be fired. Petitioner’s ambivalence was due in no small part to the fact that Mr. Rutledge was her supervisor. Petitioner described another incident that occurred shortly before the “cooter” incident. Mr. Rutledge called Petitioner into his office and asked her to look at a picture on his computer screen. The picture was of a woman in a bikini. Mr. Rutledge said something to the effect of “that is what my ex-wife used to look like.” Petitioner was embarrassed and left Mr. Rutledge’s office. Respondent maintains a sexual harassment policy of which Petitioner was aware. The policy provides, in part, that “[a]ny employee who believes that he or she is the victim of sexual harassment . . . may make an oral or written complaint to the General Counsel or Director of Internal & External Affairs within 365 days of the alleged discriminatory action.” In April 2013, approximately a week after the “cooter” incident, Respondent’s Inspector General Taroub King began an investigation of Mr. Rutledge, prompted by an anonymous complaint. Among the allegations investigated were that Mr. Rutledge borrowed money from employees, encouraged employees to participate in an investment scheme (or schemes), and utilized employees to witness signatures and notarize documents of a personal nature. The complaint described Mr. Rutledge as maintaining no management structure, lacking basic documentation, and essentially performing no work of any kind. Petitioner was interviewed in connection with the investigation by Ms. King and another investigator from the Inspector General’s office on April 4, 2013. Petitioner was placed under oath and her interview was audio-recorded. Petitioner was questioned about the allegations in the complaint against Mr. Rutledge, and she fully cooperated with the investigators. At the end of the interview, Ms. King asked Petitioner if she had any other information to relay. At that point, Petitioner reported that inappropriate comments and banter of a sexual nature occurred in the office. Petitioner did not report any other details. Ms. King asked Petitioner for particular examples. In response, Petitioner shared the “cooter” incident and the “bikini” incident. All of the employees in the Gainesville office were interviewed by Ms. King. Mr. Keels was interviewed after Petitioner and was questioned about the “cooter” incident and office banter of a sexual nature. At the final hearing, Petitioner maintained that there was both frequent sexual banter and inappropriate conversations in the Gainesville office. She testified that the staff nurse once referred to a patient as having “balls the size of a bull.” She also reported that Mr. Rutledge made hand gestures indicating that Ms. Gonzalez was large-breasted. Petitioner did not share these details with Ms. King during her interview. As with the “bikini” incident, Petitioner was able to walk away from, or otherwise ignore, the comments and gestures of a sexual nature in the workplace. Upon her return to Tallahassee, Ms. King reported her investigative findings to members of Respondent’s Human Resources Department, the Deputy Secretary, and the Director of Internal and External Affairs. Petitioner testified that she sent Ms. King an email sometime after her interview asking whether more information was needed from Petitioner regarding her complaints of inappropriate sexual comments in the workplace. Ms. King denied that Petitioner sent any follow-up email of that nature. Ms. King did recall an email from Petitioner requesting public records. Respondent terminated Mr. Rutledge on April 8, 2013, four days after Petitioner was interviewed by Ms. King. The decision to terminate Mr. Rutledge was made by management in the Tallahassee office. Both Mr. Hudson, the Deputy Bureau Chief, and Ms. James, the Bureau Chief, traveled from Tallahassee to Gainesville to terminate Mr. Rutledge. Ms. Zeigler was likewise present at the Gainesville office for the termination of Mr. Rutledge. However, Ms. Zeigler claimed not to have been informed ahead of time about the termination. She said the appearance of Mr. Hudson and Ms. James at the Gainesville office on April 8, 2013, was a surprise to her. In early May 2013, a significant remodel of the Gainesville office was initiated. The remodel created confusion in the Gainesville office, with furniture being moved around, office files and equipment being boxed up, and the general mess associated with construction in the workplace. At some point, Petitioner lost track of an entire box of her files and later found them on the floor under a pile of chairs she assumed the painters had moved.5/ Alleged Acts of Retaliation Respondent named Mr. Keels as Acting POA, effective April 8, 2013. Ms. James testified, credibly, that Mr. Keels was named Acting POA because he was the senior CA in the office. Mr. Keels was questioned about the “cooter” incident during his interview by the Inspector General. Thus, there is sufficient evidence from which the undersigned can infer that Mr. Keels was aware Petitioner had reported the “cooter” incident to the Inspector General during the investigation of Mr. Rutledge. Petitioner complained that she was ostracized by other employees in Gainesville after Mr. Rutledge was terminated. Petitioner also complained that Mr. Keels treated her unfairly in his capacity as acting POA. First, Petitioner maintained that Mr. Keels increased her caseload, from about 27 to about 44 cases, which made her job very difficult given the lengthy commutes to her assigned facilities. Petitioner introduced no evidence, other than her testimony, that her caseload substantially increased after Mr. Keels became acting POA. Petitioner complained to the Inspector General on April 4, 2013, that her caseload under Mr. Rutledge’s supervision was inordinately heavy. Petitioner also shared with the Inspector General that Mr. Keels, in his capacity as senior CA, was unfair in case distribution. Further, Petitioner testified that although her caseload was heavy in early May, it later declined. The evidence does not support a finding that Mr. Keels assigned Petitioner an inordinately heavy caseload following her complaints to the Inspector General and Mr. Keels’ temporary promotion to acting POA. Sometime after Mr. Keels became acting POA, he took away Petitioner’s worktable. According to Petitioner, Mr. Keels said he took the table for use in the conference room for “staffings,” a term that was not explained by any witness. Petitioner testified there were other tables available in the meeting room which could have been used for that purpose. For the next two months, Petitioner completed her in- office work at a window ledge. She placed her laptop and files on the ledge and utilized extra chairs for additional workspace. In June 2013, Petitioner was presented with a new desk. Petitioner’s Termination During Mr. Rutledge’s tenure as POA, the Bureau had rolled out significant changes to the CARES program. Those changes had not been implemented by Mr. Rutledge, much less communicated to the Gainesville staff. After Mr. Rutledge’s termination, CARES management began monitoring the Gainesville office very closely. During the next few months, Ms. Zeigler was more frequently present in the Gainesville office and was in almost constant contact with Mr. Hudson regarding the activities of the Gainesville office. However, Ms. Zeigler was unaware of any discussions Mr. Hudson may have had with the Bureau Chief or the Division Director. Shortly after Mr. Rutledge’s departure, Ms. Zeigler met with the Gainesville staff to explain new procedures. Among the procedures was a requirement to include on employees’ GroupWise calendars, an entry of every planned field visit. The CAs’ GroupWise calendars were accessible not only to their immediate supervising POA, but also to the RPS and higher-level managers. The calendar was an important management tool used by Respondent both to perform quality assurance checks and to monitor employee performance. On May 9, 2013, Ms. Zeigler sent the following email to the CAs in Gainesville: Good afternoon all, As mentioned in the past meeting in your office, it was requested that I be given access to your GroupWise calendars to help monitor accountability for field visits with Specialization. I would like to thank each of you for adhering to the request, and would like to ask each of you to add the following information to your calendars: First and Last name of client visiting Facility name where client will be visited Home address if visiting client in the home Purpose of visit Time of visit (include estimated travel time) * * * This information is needed for accountability purposes, and also used to check that assessments are being entered in CIRTS, per the attached CARES policy #PPH Update No2011_2, that is still currently in place. Effective immediately, I would like for each worker to add this information to their calendars prior to making a visit. You should also add any approved leave time that you will be taking as well. If your visit schedule changes, it needs to be noted on the calendar with the appropriate change. Please revisit this memo for a thorough understanding. On May 14, 2013, Ms. Zeigler sent an email to Petitioner informing Petitioner that information on her calendar was incorrect. On May 31, 2013, Ms. Zeigler issued a formal counseling memorandum to Petitioner for failure to list her client visits on her GroupWise calendar as directed. The following excerpt is especially relevant: You were instructed to submit your plans for field visits [sic] travel at least one day in advance of the actual travel. A review of your calendar clearly showed that you either did not put any information on your calendar as required and/or you entered incorrect data, for the following dates: April 16, 2013, May 6, 2013, May 7, 2013, May 9, 2013, May 10, 2013, and again on May 14, 2013. At the final hearing, Petitioner did not deny that she failed to enter required information on her calendar. Instead, Petitioner offered a series of excuses, including system connectivity issues, her travel schedule, and confusion regarding a transition from GroupWise to the Outlook calendar system. With regard to connectivity, Petitioner explained that there were problems connecting to the Department’s computer system from remote locations and, occasionally, in the Gainesville office. Petitioner likewise testified that she would not return home until 6:00 p.m. or later on days she traveled to Jasper and other remote field locations. Petitioner complained that connectivity issues prevented her access to GroupWise from home, and thus, was unable to enter the visits scheduled for the following day. Petitioner testified that she complained to the information technology department in Tallahassee about connectivity issues and diligently tried to address these concerns. Petitioner introduced in evidence an email exchange between herself and Ms. Zeigler in which she complained about, and Ms. Zeigler resolved, an issue with Petitioner’s access to CIRTS – the Department’s online case input system. The email string is dated July 17, 2013, well after the date of Petitioner’s documented missing calendar entries. Further, the email relates to access to the case input system and is irrelevant to Petitioner’s claim of issues with connectivity to the computer system in general. Finally, Petitioner explained that the Department changed from GroupWise to the Outlook system, and she was confused about whether to continue adding entries on her GroupWise calendar during that transition. In the May 31, 2013, counseling memorandum, Ms. Zeigler referred to the program’s transition from the GroupWise to the Outlook calendaring system, as follows: The Microsoft Outlook Email and Calendar program was installed on all computers in DOEA, migrating existing GroupWise information to the new Outlook program on May 28, 2013. Instruction videos and online documentation were made available to all DOEA employees to learn how to utilize the new program. You were instructed to give proxy access to the RPS via email from the acting Supervisor. It is evident that you were successful in accessing the Outlook Calendar, as you sent the RPS a request to share your calendar on May 30, 2013. On the same date, you left the office to go to the field at 12:55 p.m., and failed to update/place any information on your calendar before departing. The sign in sheet indicated that you were going to a nursing facility. This repeated failure to comply with procedures is unacceptable. As a result of this failure, your supervisor was unaware of what facility and/or client you were seeing and how long it would take time wise for the field visit. You effectively prohibited your supervisor from knowing your whereabouts and/or the client(s) to be seen. In light of the facts, Petitioner’s alleged confusion about whether to continue adding information to her GroupWise calendar is not credible. Petitioner did not send an Outlook calendar-sharing invite to Ms. Zeigler until May 30, 2013, well after her missing GroupWise calendar entries of April 16 and May 6, 7, 9, 10, and 14, 2013. Further, Petitioner failed to calendar her appointments the same day she sent Ms. Zeigler the calendar- sharing invitation, thus belying any excuse that she had connectivity issues, at least on that particular date. In an effort to minimize the significance of her failure to document her field visits on her calendar, Petitioner testified that she noted her field visits on a daily sign-in log physically maintained in the Gainesville office. Petitioner introduced a composite exhibit purporting to be copies of the daily sign-in logs from April, May, June, and July 2013. Even if the exhibit was reliable evidence of Petitioner’s whereabouts, the logs are irrelevant to the issue of whether Petitioner complied with the electronic calendaring requirement. No evidence was introduced to support a finding that the daily sign-in log was an acceptable alternative to Ms. Zeigler’s specific, clear, and repeated direction to all Gainesville employees to use their GroupWise, and later Outlook, calendars to note their planned field visits with required details. The evidence conflicted as to whether Ms. Zeigler’s May 31, 2013, counseling memorandum constituted discipline. Petitioner testified that the memorandum was a training tool. Ms. Zeigler testified alternately, and with hesitancy, that the memorandum was “almost like a verbal warning type of thing,” and “unofficially formal.” On cross-examination, Ms. Zeigler testified, “I don’t think that that would be a reason to fire somebody after one counseling memo. I mean that would be absurd.” Ms. James testified that the memorandum constituted a first-step disciplinary action. Ms. James explained that a counseling memorandum is preceded by a verbal warning from the supervisor. The Department’s disciplinary policy was not introduced in evidence. In light of Petitioner’s probationary employment status, the issue of whether the counseling memorandum constituted discipline is largely irrelevant. The counseling memorandum is evidence of poor job performance during Petitioner’s probationary employment period. At some point after Mr. Rutledge’s termination, the Department advertised for the open POA position. Both Petitioner and Mr. Keels applied for the position. Mr. Hudson and Ms. Zeigler conducted interviews for the position. Petitioner was not responsive to Ms. Zeigler’s efforts to schedule Petitioner’s interview for the position. Eventually, Ms. Zeigler did interview Petitioner for the position. Ms. Zeigler also interviewed Mr. Keels. In June 2013, Ms. Zeigler prepared performance evaluations of the Gainesville staff. Ms. Zeigler had little knowledge of staff performance prior to Mr. Rutledge’s termination, as Ms. Zeigler was new to the region. Ms. Zeigler gave all the Gainesville employees ratings of “3,” satisfactory performance, across the board. In late July 2013, Ms. Carr and Ms. Hajdukiewicz from the Tallahassee office came to the Gainesville office and personally terminated Mr. Keels. Ms. James did not directly make the decision to terminate Mr. Keels, but she agreed with the decision. Ms. James stated that Mr. Keels was terminated based on his actions after he became acting POA in Gainesville. Ms. James did not elaborate and neither counsel asked any follow-up question. On July 31, 2013, Ms. Carr and Ms. James came to the Gainesville office from Tallahassee, met with Petitioner, and offered her a choice of resignation or termination. Petitioner chose termination. That same day, after leaving the office, Petitioner called the Department of Human Resources and requested to change her termination to resignation. The request was granted. Petitioner did not ask why she was being terminated or asked to resign. Petitioner testified that neither Ms. Carr nor Ms. James gave her a reason. Ms. Zeigler resigned from the Department in October 2013. The circumstances of Ms. Zeigler’s resignation were not introduced in evidence. In that regard, Ms. Zeigler testified as follows: I had a lot of questions with the State that probably should not come up here, but there are a lot of questionable things that were going on with the State at the time which led to my resignation. So I did not question it. I did not question [Petitioner’s] termination based off of my ability to run the office, because I almost felt like it was being run above me.[6/] Ms. Zeigler’s testimony was introduced in support of Petitioner’s claims. However, Ms. Zeigler had difficulty recalling events, including the timing of relevant events. Of note, Ms. Zeigler testified that she was the RPS for Gainesville about a year, meaning she would have begun in the position in October 2012. Later, she testified that Mr. Rutledge was terminated “not long after I was there [as RPS].” Her testimony was hesitant, hedging, and sometimes conflicting. Ms. Zeigler testified that she was in daily contact with Mr. Hudson about issues in the Gainesville office after Mr. Rutledge was terminated, but claimed to have had no advance notice of either Mr. Keels’ or Petitioner’s termination. As such, the undersigned finds Ms. Zeigler’s testimony to be both unreliable and unpersuasive. Ms. Zeigler’s counseling memorandum to Petitioner regarding calendaring is credible evidence of Petitioner’s job performance which cannot be discounted by Ms. Zeigler’s after-the-fact, and apparently biased, testimony.
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 Respondent, Florida Department of Elder Affairs, did commit an unlawful employment practice as to Petitioner, Linda Cattanach, and prohibiting the practice. However, under the specific facts of the case, the undersigned recommends no affirmative relief from the effects of the practice. DONE AND ENTERED this 5th day of October 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 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 for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
