The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to her age.
Findings Of Fact Petitioner, Sandra Minnie, is a 62-year-old female. Ms. Minnie had been working as an assistant manager at a Wal-Mart store in Marion, Ohio, but in late 2008, applied for a transfer to Store 5300 in Gibsonton, Florida. Store manager Vicki Tillman interviewed Ms. Minnie and in November 2008, hired her as an assistant manager at Store 5300. Ms. Tillman is currently 61 years old. While in Ohio, Ms. Minnie had worked as the front-end assistant manager1/ for Wal-Mart, and accordingly, was hired to work in the same capacity at Store 5300. Wal-Mart assistant managers are routinely scheduled to work between 52 and 56 hours per week. Ms. Minnie's scheduling would have been dictated by the position that she held, to wit, front-end manager. Ms. Minnie received a copy of, and was familiar with, Wal-Mart's Discrimination and Harassment Prevention Policy. The Discrimination and Harassment Prevention Policy instructs employees who experience harassment or discrimination to report the violation to a salaried member of management, or to call the Wal-Mart Ethics Hotline. Ms. Minnie was also familiar with Wal-Mart's Open Door Policy, which allows associates to report any concerns they have up the chain of command, all the way to the CEO. Despite being aware of both of these policies, Ms. Minnie never utilized either policy, and never reported that she believed that Vicki Tillman, or anyone else with Wal-Mart, was discriminating against her or harassing her because of her age. Although Ms. Minnie made several handwritten notes of occasions on which she felt her superiors had mistreated her, she never approached a member of Wal-Mart management to discuss her complaints. Soon after Ms. Minnie began as an assistant manager at Store 5300, it became apparent that she did not perform many of her job responsibilities properly, and that there were many assistant manager duties that she did not know how to perform, and often performed incorrectly. After several informal conversations between Ms. Minnie and both Co-Manager Maness and Store Manager Tillman regarding Ms. Minnie's performance deficiencies, and after seeing no improvement, Ms. Minnie was given a verbal “coaching”2/ on January 8, 2009, for failure to adequately perform her duties as an assistant manager. Several of the issues covered during this verbal coaching had been informally discussed with Ms. Minnie on prior occasions. Ms. Minnie did not challenge this coaching. On the same day as her coaching, Ms. Minnie's niece was caught shoplifting at Store 5300. While Ms. Minnie was not held responsible for the actions of her niece, she felt that management "seemed to distrust [her] integrity after that point." Despite continued informal conversations and counseling by members of management, Ms. Minnie's performance did not improve. Furthermore, Store Manager Tillman began to receive complaints from other assistant managers about having to take on too many of Ms. Minnie's responsibilities because she was not pulling her own weight. On April 9, 2009, Ms. Minnie received a written coaching for giving manager's keys to an hourly associate, and for failing to accurately verify a cash deposit before approving it, resulting in the bank deposit being $1,000.00 short. Again, Ms. Minnie did not challenge this coaching. On another occasion, Ms. Minnie violated Wal-Mart policy by cashing her own check personally in the cash office instead of having the next level of management above her cash it. Ms. Tillman instructed Co-Manager Maness to have a conversation with Ms. Minnie about the correct procedure for check cashing, and instructed Ms. Maness not to formally coach Ms. Minnie at that time. In the weeks prior to Father's Day, all managers received an e-mail notifying them that a specific model of television was due into the stores, in limited quantities, for the Father's Day sale. The e-mail specifically stated that there would be a “sale-block” placed on the television, and that the televisions could not be sold prior to the sales event. As the assistant manager in charge of the front end and back room, Ms. Minnie would have received this e-mail. On the evening of June 9, 2009, prior to the Father's Day sale, Ms. Minnie took one of the Father's Day sale televisions from the back stockroom (which had never been on the sales floor) and brought it to the electronics department cash register to purchase. When the television was rung up, the cash register prompted: "sale not allowed." Despite this clear instruction, Ms. Minnie permitted the cashier to call over another assistant manager (Terry), who overrode the sale block and allowed the sale to be completed. Associates are not permitted to bring merchandise that has never been on the sales floor directly from the back room to a cash register for purchase. Moreover, associates are not permitted to override "sale not allowed" register prompts. When Co-Manager Maness arrived at work on June 10, 2009, she was informed by the electronics department manager that a sale block override had been performed on a television that was being held for the Father's Day sale. Ms. Maness investigated the sale and discovered that Ms. Minnie had violated Wal-Mart policy by removing the television, which was being held for a future sales event, from the back room, and purchasing it, despite the register prompt, "sale not allowed." Ms. Maness further concluded that the assistant manager who had overridden the sale block had also violated Wal-Mart policy. Even though overriding a sale block was potentially a terminable offense, Ms. Maness consulted with Store Manager Tillman, who instructed Ms. Maness to just coach both Ms. Minnie and the assistant manager to the next level. Because Ms. Minnie had already received a verbal and a written coaching, Ms. Maness drafted a Decision-Day Coaching for Ms. Minnie.3/ Ms. Minnie never returned to work at Store 5300 after purchasing the television on June 9, 2009. Although Ms. Minnie was scheduled to work on June 12, 2009, she called in sick. She then took her previously scheduled vacation from June 13-19, 2009. At the end of her vacation, instead of returning to work, Ms. Minnie submitted leave of absence paperwork indicating that she needed to be out until October 23, 2009. Ms. Minnie's leave of absence paperwork was approved by Store Manager Tillman. Under Wal-Mart's leave of absence policy, Ms. Minnie technically remained an active employee of Wal-Mart until June 6, 2012. As such, she could have returned to Store 5300 at any time prior to that date as an assistant manager. Ms. Minnie felt that Ms. Tillman was a very demanding store manager. This opinion was shared by other assistant managers at Store 5300. At least three other assistant managers (all of whom were significantly younger than Ms. Minnie) confided in Ms. Minnie that they believed that Ms. Tillman was a difficult store manager to work with.4/ Although it is undisputed that Ms. Tillman was a demanding and difficult store manager to work for, the evidence of record does not support the conclusion that Ms. Minnie was treated differently than other employees because of her age. Nor does the evidence establish that the series of "coachings" leading up to Ms. Minnie's departure from Wal-Mart had anything to do with her age. Ms. Minnie testified that she felt "disrespected" by Ms. Tillman, and had been referred to by her as a "wet rag mop," while younger assistants were referred to as "perky new brooms." Petitioner also alleged that Ms. Tillman made disparaging remarks about her hairstyle and dress. The result of this mental harassment, according to Petitioner, was that Petitioner suffered a severe mental breakdown that made it impossible for her to return to work. However, no corroborating witnesses provided any evidence that Ms. Tillman, who is less than a year younger than Ms. Minnie, made any disparaging comments about Ms. Minnie's age, and Ms. Tillman vehemently denied making such remarks.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of October, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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, 2012.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on September 12, 2011.
Findings Of Fact The events at issue concern Embarq's termination of Mr. Garcia's employment on September 13, 2010. At the time of his termination, Mr. Garcia was a 45-year-old male. His national origin is Puerto Rico, and he is of Hispanic descent. Further, Mr. Garcia suffered from migraine headaches, which were the result of a work-related injury. He had been an employee of Embarq, and its predecessor companies, since August 10, 1998. Before his termination, Mr. Garcia worked as a technician servicing business and residential customers. His base of operations was at the customer service center located in Winter Park, Florida, referred to by Embarq as the Winter Park "Railroad Avenue" Center. As a service technician, Mr. Garcia would receive his daily customer calls through a computer system that sent out work orders. Mr. Garcia would drive the Embarq vehicle to the customer's house or business to complete the service. The Embarq vehicle was equipped with a global positioning satellite (GPS) monitor tracking the vehicle's location, including the time the vehicle left and returned to the Embarq office. Finally, Mr. Garcia's work time was recorded by Embarq's computer system, named SAP, in which Mr. Garcia would enter a code indicating the tasks accomplished in customer service, the time when the task began and the time when he completed the task. As a service technician, Mr. Garcia was required to truthfully and accurately enter his time worked into the SAP system. Ms. Smith was Embarq's area operations manager for the Central Florida area, including the Winter Park center where Mr. Garcia worked. In the summer of 2010, Ms. Smith noted that some of the Embarq vehicles were returned to the customer service centers before the end of the work day at 4:30 p.m. Consequently, she asked the customer service center supervisors to examine all employee time records and determine whether or not a problem existed. Ms. Smith learned from Charles Clendenny (Mr. Clendenny), the acting manager for the Winter Park customer service center, that the examination showed some questionable activities. Based on Mr. Clendenny's report, Ms. Smith asked Ms. Trinder to conduct an independent review of all the employees at the Winter Park “Railroad Avenue” center. Ms. Trinder was Embarq's human relations business-partner, and part of her duties involved conducting employee investigations. Ms. Trinder examined the GPS documentation, the SAP time sheets, and the computer systems work force management assignments for all of the Winter Park “Railroad Avenue” employees. Her examination revealed questionable activities by four employees: Mr. Garcia, Scott Somner, James Shaunessy, and William Allison. The record showed that Mr. Somner is an African American and was approximately 48 years old at the time; that Mr. Shaunessy is a Caucasian, age in his sixties; and that Mr. Allison is an African American, age in his twenties. Of the four employees, only two were terminated, Mr. Garcia and Mr. Somner. Ms. Trinder and Ms. Smith credibly testified that during the interviews, they had learned that Mr. Shaunessy and Mr. Allison had received approval from their prior supervisor, Joe Venezia, to leave work early on the specific dates. Further, the data from the three computer systems confirmed Mr. Shaunessy's and Mr. Allison's explanations for leaving work early for the specific dates. Both Mr. Shaunessy and Mr. Allison were given training by Ms. Smith and Ms. Trinder concerning Embarq's work attendance polices. As to Mr. Garcia, Ms. Trinder's examination showed that Mr. Garcia had falsified his time records, and that he had unscheduled work absences. At the conclusion of the interview, Ms. Trinder typed a statement of Mr. Garcia's interview. The statement indicates that Mr. Garcia stated he did not know why he had entered that he had worked on two unscheduled work days, July 2, 2010, and July 14, 2010, and that he had mistakenly entered 4.75 hours as worked on an August 3, 2010, a date he actually took unscheduled time off. The result of these time entries was that Mr. Garcia was paid for work days on which he did not work, and that he avoided discipline for missing work. The Embarq employee handbook shows that employees are subject to discipline, if the employee misses work on a scheduled work day. The record shows that Mr. Garcia had previously been trained by his supervisor about the problem of missing work without providing the required 24-hour notice. On September 10, 2010, Ms. Smith sent a request to Ms. Susan Sarna, vice president/general manager, recommending that Mr. Garcia be terminated. Similarly, Ms. Trinder sent a recommendation to her supervisor recommending Mr. Garcia's termination. On September 13, 2010, Mr. Garcia was terminated as an Embarq employee. Mr. Garcia clearly testified that even though he had migraines that he had not requested any type of accommodation from his supervisors or from Embarq. Mr. Garcia did not bring forward any evidence, either direct or indirect, showing that Embarq's termination of his employment was the result of an unlawful employment practice. Mr. Garcia did not bring forward any evidence showing that Embarq's offered explanation that it terminated Mr. Garcia for attendance and time falsification was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner failed to show that Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act, and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 11th day of September, 2012.
The Issue Whether 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 be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission 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 9th day of July, 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 9th day of July, 2012.
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. In May of 1990, Petitioner, a black male, began working as a delivery driver for the former owner of the Domino's Pizza franchise in Tallahassee, Florida. Respondent bought the franchise in March of 1992 and retained Petitioner as a driver to deliver pizza at store number 5131. On March 30, 1992, Petitioner signed a statement that he had read and understood the Respondent's Employee Orientation Manual setting forth, among other things, standards for personal conduct. This manual specifically advises that an employee may be disciplined or discharged for: (1) negligent handling of company funds; (2) insubordination and refusal to do assigned work; (3) disturbing the work force and/or creating a disturbance; and (4) harassment of team members. At all times material hereto, Scott Nelson was the store manager at Respondent's store number 5131. Mr. Nelson had authority to hire and fire employees at that location. Though it was against store policy, Mr. Nelson and other employees frequently used profanity and told vulgar off- color jokes while working. Sometimes the jokes involved inappropriate racial overtones. At times Mr. Nelson would call black customers "stupid niggers" after they left the store. Petitioner would also use the term "nigger" in conversations but in a context he believed to be acceptable. Mr. Nelson encouraged employees to discuss any problem they had with management in the privacy of the office at the rear of the store. Mr. Nelson told the employees that they could speak freely during these discussions and nothing they said would be taken personally. The purpose of holding the discussions in the office was to prevent customers from overhearing the conversations. Occasionally, Mr. Nelson and an employee would have a heated argument and curse at each other as long as no customers were in the store. Other employees heard these arguments but there is no evidence that the arguments took place outside the confines of the office. During some of these arguments, Mr. Nelson would threaten to fire employees but not follow through with his threats or report the incidents to his superiors. At all times material to this proceeding, Niki Supplee, a white female, worked as a delivery driver at Respondent's store number 5131. She and Mr. Nelson had heated arguments in which they cursed each other. She was never written up or disciplined after these outbursts. The record does not reveal the location or the subject matter of the arguments between Ms. Supplee and Mr. Nelson. At all times material to this proceeding, Ms. Supplee had a black boyfriend. Upon learning that her boyfriend was black, Mr. Nelson offended Ms. Supplee by asking why she was attracted to a black man. He wanted to know what was wrong with her and why she could not find a white guy. Once or twice when Ms. Supplee heard Mr. Nelson use a racial epithet, she informed him that she did not appreciate that kind of language. Subsequently, Mr. Nelson would use a racial slur then apologize to Ms. Supplee. Petitioner and Mr. Nelson occasionally had a beer together after work. On one of these occasions, Mr. Nelson admitted that he had been raised in an environment where there were very few black people. Mr. Nelson admitted that he had to learn how to get over certain feelings about being around black people when he first began working at Domino's Pizza. At the hearing Mr. Nelson admitted that on occasion he may have made racial slurs in front of his employees about customers after they left the store. However, prior to the incident which is the subject of this proceeding, no employee ever complained to Mr. Nelson's supervisor, Ron LeStourgeon, about Mr. Nelson's use of racial epithets or perceived racial prejudices. There is no evidence that Mr. Nelson ever used a racial slur directed towards his employees or in relation to an employment decision. During the period of Petitioner's employment, he was given verbal warnings about failing to be at work on time, making personal stops on company time without permission, and refusing to perform certain tasks on the premises. Mr. Nelson would occasionally instruct Petitioner to do an assigned task at the store when other white employees were standing around talking. However, there is no persuasive evidence that Mr. Nelson's instructions to Petitioner were anything more than a reminder to do a previously assigned routine job for the day. Mr. Nelson required Petitioner to sign a statement on September 7, 1993, as a result of his refusal to follow directions without complaint. Mr. Nelson prepared the statement in which Petitioner agreed to follow the direction of management staff promptly and without complaint or risk disciplinary action including termination. The statement advises Petitioner that he should go directly to Mr. LeStourgeon if Petitioner had a complaint he could not resolve with Mr. Nelson. There is no competent persuasive evidence that Mr. Nelson created written or verbal policies designed to adversely impact Petitioner and not other employees. Mr. LeStourgeon was in the store 275 to 300 times during 1993. Petitioner did not attempt to contact Mr. LeStourgeon regarding any perceived racial discrimination at work. Petitioner's testimony to the contrary is not persuasive. On October 21, 1993, Petitioner filed a claim with the United States Department of Labor, Wage and Hour Division of the Employment Standards Administration. This complaint alleged that Respondent did not pay Petitioner for all of the hours he worked. Mr. Nelson subsequently resolved this dispute by taking Petitioner's word that he was due the money and including that amount in the next pay check. There is no competent persuasive evidence that Respondent's decision to terminate Petitioner's employment was related to the filing of this claim. On October 21, 1993, Petitioner also went to the Florida Commission on Human Relations and spoke to an in-take counselor. He did not file a claim but wanted advice because he believed the problems he and other blacks were experiencing at work were due to racial discrimination. On November 16, 1993, Petitioner made a certain pizza delivery and inadvertently failed to turn in $8.55 when he checked out that night. Milton Finkelstein, the assistant manager on duty, realized after Petitioner left for a two-day vacation that the store was short by that amount. Mr. Nelson was not on duty that evening. Mr. Nelson returned to work on November 17, 1993, but Mr. Finkelstein had the day off. Mr. Nelson did not determine which driver was responsible for the missing money until Mr. Finkelstein returned to work on November 18, 1993. Petitioner lived very close to the store but had no telephone. On occasion, a driver was sent to Petitioner's house to ask him to report to work. However, Petitioner let the managers know that he did not want to be bothered at home when he was off. Petitioner did not return to work until November 19, 1993. Mr. Finkelstein showed the ticket for the missing money to Petitioner who confronted Mr. Nelson in the office. Because Petitioner denied that he made the delivery, Mr. Nelson called the customer who thought a black man delivered the pizza three days before. Petitioner was the only black driver on duty at store number 5131 on November 16, 1993. Petitioner's testimony that he worked at another Domino's Pizza store for most of that evening is not persuasive. After the telephone call, Mr. Nelson insisted that Petitioner would have to reimburse the store for the missing $8.55. Mr. Nelson also told Petitioner that he would have to pay future missing receipts even if management did not identify Petitioner as the responsible driver for three days. Petitioner began to argue loudly and yell at Mr. Nelson. As Petitioner stormed out of the office, he screamed back, "Fuck you, Scott," repeating it several times. Three employees in the front of the store heard Petitioner make these statements. Mr. Nelson then told Petitioner to, "Go get your money. Go get your mileage." Mr. Nelson was upset at the time of this incident because it was the most threatening scene that had ever occurred in the store. Petitioner and Mr. Nelson had argued in the past but Petitioner had never been so openly defiant. Mr. Nelson intended to take some disciplinary action but did not make an immediate decision to fire Petitioner. Petitioner's testimony that Mr. Nelson fired him before he yelled profanities is not persuasive. When Petitioner left the store on November 19, 1993, he had cash from that day's deliveries that belonged to the store. Mr. Nelson sent Mr. Finkelstein and another employee to Petitioner's home to retrieve the cash. Upon their arrival, Petitioner was uncooperative and verbally abusive. They returned to the store without the cash. Mr. Nelson called Mr. LeStourgeon, to advise him of the situation and ask him what, if any, disciplinary action should be taken. Mr. LeStourgeon directed Mr. Nelson to do what was necessary to retrieve the day's receipts and fire Petitioner for insubordination. Mr. Nelson called the Tallahassee Police Department. Two police officers interviewed Mr. Nelson then went to Petitioner's house. The officers returned to the store without the cash receipts. There is no evidence that Mr. Nelson ever signed a complaint. About 1:30 a.m. on November 20, 1993, Petitioner voluntarily returned to the store and gave the cash receipts from November 19, 1993, to Mr. Nelson. He did not pay the $8.55 which he owed the store. Petitioner inquired whether he was fired. Mr. Nelson informed Petitioner that he was fired for insubordination. Petitioner did not hire black people to work in the store then cut back their hours or fire them in order to replace them with more recently hired white people. Testimony to the contrary is not persuasive. Mr. Nelson was more than just insensitive at times to other people's feelings. He often failed to conduct himself in a professional manner. He had difficulty supervising and working with white and black employees. He no longer works for Petitioner as a store manager. Regardless of Mr. Nelson's inappropriate behavior and lack of management skills, his decision to report Petitioner's insubordinate conduct to Mr. LeStourgeon was not motivated by intentional racial discrimination. Rather, Mr. Nelson sought the advice of his superior because of Petitioner's gross insubordination: (1) he cursed the store manager in front of other employees; (2) he refused to pay $8.55 for the pizza delivered on November 16, 1993; (3) he refused to promptly turn in the cash receipts from November 19, 1993 upon request; and (4) he verbally abused the assistant manager and the other employee who attempted to retrieve cash receipts. Competent persuasive evidence indicates that Mr. LeStourgeon made the decision to fire Petitioner based on his conduct alone with no knowledge of Mr. Nelson's policies regarding profanity or vulgarity. Mr. Nelson's racial prejudices, if any, were unknown to Mr. LeStourgeon and not a consideration in the employment decision. Moreover, Mr. LeStourgeon would have fired Petitioner because of his blatant insubordination and threatening attitude even if he had been aware that Mr. Nelson had tolerated similar conduct in the past. The same decision would have been reached absent the presence of Mr. Nelson's alleged discriminatory motive. There is no evidence that Petitioner replaced Petitioner with another driver, white or black. Mr. Nelson hired Mr. Finkelstein's daughter, a white person, while Petitioner was still working for Respondent. She backed into a customer's car in the parking lot. Respondent gave the customer twenty-five free pizzas for damage to his car because Mr. Finkelstein agreed to pay Respondent for the pizzas. Mr. Finkelstein subsequently reimbursed Respondent. This incident does not show favoritism for white employees. During 1993, Respondent had approximately twenty-three (23) employees at store number 5131. Of those employees, sixteen (16) were white, five (5) were black, and two (2) were Hispanic. Petitioner was the only employee fired from Respondent's store number 5131 in 1993.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor or the witnesses, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Respondent did not discharge or otherwise discriminate against Petitioner on account of his race and dismissing the Petition for Relief. RECOMMENDED this 29th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 29th day of June, 1995. APPENDIX The following constitutes specific rulings on the Petitioner's Proposed Findings of Fact pursuant to Section 120.59(2), Florida Statutes. Respondent did not file Proposed Findings of Fact. Rejected. Testimony of management concerning this point is more persuasive. Rejected. See paragraph 20. Accepted as modified in paragraphs 5-7. Accepted as modified in paragraph 8. Rejected. See paragraphs 16-17. Rejected. Not supported by competent persuasive evidence. Rejected. See paragraph 30. Accepted as modified in paragraphs 5, 10, and 12. Reject the last sentence entirely as argumentative. Rejected. See paragraph 30. Rejected. See paragraph 16. Rejected. See paragraph 16. Rejected. See paragraph 25. Rejected. See paragraph 22. Rejected as not supported by competent persuasive evidence. Rejected. No evidence that Petitioner applied for promotion. COPIES FURNISHED: Lenny Fulwood, II 790 El Dorado Street Tallahassee, Florida 32304 Thomas Bean President of Seminole Pizza, Inc. 6005 Benjamin Road, Suite 100 Tampa, Florida 33643 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 Denise Crawford, Agency Clerk 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 The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of his age.
Findings Of Fact Respondent produces flexible packaging, develops technology to fill that packaging with liquids, and provides services to incorporate its flexible packaging systems into its customers' facilities. Respondent primarily produces "bag-in- box" products and manufacturing systems for customers such as Pepsi-Cola and Wendy's, as well as various customers in the milk, juice, and chemical business. Respondent operates two manufacturing facilities, one located at its headquarters in Romeville, Illinois, and another located in Union City, California. Petitioner was born on April 24, 1946. In 1996, Respondent hired Petitioner as a sales representative, and he served in that position until he was discharged on April 19, 2004. Petitioner initially was assigned to service the Upper Midwest Region and was based in Chicago, Illinois. In 1999, Respondent reassigned Petitioner to the Southeast Region. After his reassignment to the Southeast Region, Petitioner continued to live in the Chicago area for several years. However, in December 2002 or January 2003, Petitioner and Respondent mutually agreed that Petitioner would relocate to Florida. Because the move resulted from a mutual decision between Petitioner and one of Respondent's founders, Respondent paid $25,000 towards Petitioner's moving expenses. After the move, Petitioner continued to be responsible for the same geographical territory and the same customers as before the move. Joe Pranckus is Respondent's vice president of sales. At the time of Petitioner's discharge, the sales department consisted of a customer service department and four geographical sales territories: the Central, Western, Eastern and Mexico Regions. The Central and Western Regions (where Respondent's manufacturing facilities are located) each were overseen by a regional manager. The Eastern and Mexico Regions did not have regional managers. As Petitioner was located in the Eastern Region, Mr. Pranckus served as his direct supervisor. From 1999 until his dismissal, Petitioner was Respondent’s only sales representative in the Southeast. His primary responsibility was to maintain and increase Respondent’s business in that region of the country. The Rapak sales department as a whole is generally responsible for maintaining and increasing Respondent’s overall sales. This involves not only selling products and services, but also following up with customers to help them solve problems and otherwise to ensure their happiness. Because his primary responsibility was maintaining and increasing sales, Mr. Pranckus judged Petitioner almost exclusively by his year-to-date sales numbers as compared to the same period in the previous year. These numbers were calculated by Mr. Pranckus on a fiscal-year basis, from May 1st through April 30th. For the 2003-2004 fiscal year, Mr. Pranckus established a goal for Petitioner of 15 percent growth in sales. The minimum expectation was that Petitioner maintain at least the same amount of sales he had the previous year. During the 2003-2004 fiscal year, Mr. Pranckus e- mailed Petitioner his sales-versus-last-year figures on almost a monthly basis. By the end of June 2003, Petitioner had sold only 84 percent as much as he had sold through June 2002; by the end of July, only 87 percent as much as he had sold through July 2002; by the end of August, 91 percent; September, 81 percent; October, 90 percent; November, 85 percent; December, 87 percent; and by the end of March 2004 (eleven months into the fiscal year), he had sold only 88 percent as much as he had sold through the first eleven months of the 2002-2003 fiscal year. In short, as the fiscal year drew to a close, it was clear that Petitioner was going to suffer a net loss of business for the year. In late October 2003, Petitioner suffered a heart attack and underwent triple bypass surgery. Petitioner was unable to work for approximately two months while recovering from surgery. However, Petitioner returned to work in January 2004, initially working on a limited basis. Petitioner's sales numbers suffered because he lost some certain accounts owing to factors beyond his control (such as product quality and price issues). Nonetheless, Petitioner concedes that it was his job to replace his lost sales, no matter what caused his customers to switch suppliers. Mr. Pranckus typically holds one sales meeting each year for his entire staff. In February 2004, Mr. Pranckus held one of those meetings. At that meeting, Mr. Pranckus informed Petitioner that "changes would be made if [his] numbers didn't improve." In his application for unemployment compensation, Petitioner stated that Mr. Pranckus also warned him on March 10, 2004, that he needed to improve his sales numbers. Finally, Mr. Pranckus sent an e-mail to Petitioner on March 27, 2004. In that e-mail, Mr. Pranckus delivered the following written warning: Your territory is at a critical state. We can not continue along this path. Sales must be improved immediately or we will need to change. We agreed at our sales meeting to get this back on track. It is not showing up in the numbers and activity. Call me and let me know how we can help. On April 19, 2004, Mr. Pranckus discharged Petitioner because of his poor performance. His year-to-date sales figures were unacceptably low, as compared to the previous year, and Mr. Pranckus saw no evidence of plans or activity designed to improve matters. After Petitioner was discharged, he filed an application for unemployment compensation. On the application, Petitioner stated that he was discharged “for failure to achieve sales goals.” Later in that same application, in response to a request to “briefly summarize your reason for separation from this employer,” Petitioner wrote: “I did not achieve my sales goals.” Petitioner did not assert anywhere in his application for unemployment benefits that he was discharged because of his age. At the time of his discharge, Petitioner was 57 years old (almost 58). Mr. Pranckus did not know Petitioner’s exact age, but he would have guessed (based on physical appearance) that Petitioner was in his mid-50s at the time. Mr. Pranckus did not consider this to be “old.” In fact, Petitioner is not much older than Mr. Pranckus. Mr. Pranckus interviewed three individuals to fill Petitioner’s position. He ultimately selected Jim Wulff. Mr. Pranckus did not know their ages at the time of the interviews, but he would have guessed (again, by appearance) that Mr. Wulff was in his mid-50s and that the other two interviewees were in their mid- to late 40s and mid- to late 50s, respectively. In fact, Mr. Wulff was born on May 26, 1948, so he was 55 years old (nearly 56) when Mr. Pranckus hired him. Sales analysis from June 2003 showed that eight Rapak employees or representatives did not meet the 100 percent sales goal. Those listed were either Rapak non-supervising employees with direct responsibility for sales, supervising employees, or non-employee independent brokers. However, none of these employees, whether younger or older, was similarly situated to Petitioner at the time of his discharge. As an initial matter, there were four other non- supervisory employees with direct responsibility for sales: Dennis Hayes, Marvin Groom, Donald Young, and Keith Martinez. The other individuals responsible for sales were either supervisory employees or non-employee independent brokers. Because the two supervisors have management responsibilities and are responsible for their entire regions and the individuals who report to them, they are not judged primarily by whether they personally meet the 100 percent or 115 percent sales-versus- last-year objectives. Brokers, meanwhile, are not employees. Rather, they are independent contractors paid on a straight commission, so Respondent receives value from their services regardless of how much they sell. Mr. Hayes was the only other employee who performed the exact same job as Petitioner, but he reported to Regional Manager Dan Petriekis in the Central Region, not directly to Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold 127 percent as much as he had during the same period the previous year.1 Mr. Hayes is almost ten years older than Petitioner. Mr. Young was also responsible for sales, but he was semi-retired, serviced only one customer and received a base salary for his work. As of March 2004, however, Mr. Young had sold 115 percent as much as he had during the same period the previous year. Mr. Young is more than twelve years older than Petitioner. Finally, while Keith Martinez and Marvin Groom had some responsibility for sales, their positions were “radically different” from Petitioner’s. Whereas Petitioner could identify certain problems with Respondent’s machinery and products and would refer those problems to a service technician to assist his customers, Mr. Groom and Mr. Martinez were both originally hired as service technicians. Based on this experience, they could and did not only identify technical problems, but also performed the necessary maintenance and repair work on the spot, in addition to performing preventative maintenance. Petitioner, by contrast, has spent his entire working life as salesman. Accordingly, he was neither capable of, nor expected to, perform these additional maintenance and repair functions. As a result, Mr. Groom and Mr. Martinez received more leeway on their sales performance than Petitioner because they brought additional value to Respondent’s business that Petitioner could not offer. Nonetheless, as of March 2004, Mr. Groom was running at 100 percent versus the prior year and Mr. Martinez was running at 87 percent. Mr. Groom is roughly three years younger than Petitioner, and Mr. Martinez is 15 and one-half years younger than Petitioner. Respondent paid Petitioner $113,000 in salary and commissions during his last full calendar year of employment with Rapak. Petitioner was out of work for ten months after his dismissal. During that time, he received $8,000 in unemployment compensation from the State of Florida and $8,942.33 in severance pay from Respondent. In his new job, Petitioner projects that he will earn $100,000 in his first year but admits that he could make at least $113,000 because his compensation is once again dependent upon sales commissions.
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 committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2006.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in this case was issued on January 12, 2011, setting the hearing for March 30 and 31, 2011, in Tavares, Florida. The hearing was scheduled to commence at 9:00 a.m. on March 30, 2011. Also on January 12, 2011, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On March 23, 2011, Petitioner filed a letter at the Division of Administrative Hearings stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. This letter indicated that Petitioner was aware of the scheduled hearing dates. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. On March 29, 2011, Petitioner filed a second letter at the Division of Administrative Hearings that declined to request a continuance of the hearing and proposed that the hearing proceed based on hearsay documents that Petitioner had previously filed at the Division of Administrative Hearings. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. At 9:00 a.m. on March 30, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:15 a.m. Counsel for Respondent entered his appearance and requested the entry of a recommended order of dismissal. As noted above, Respondent had received no notice that Petitioner did not intend to appear at the hearing or that continuance was under consideration. Respondent's counsel had flown to Florida from Tennessee to appear at the hearing. One of Respondent's witnesses was a former employee whom Respondent had flown to Florida from Wisconsin at Respondent's expense. Respondent vigorously opposed any continuance of the scheduled proceeding. The undersigned declined on the record to continue the hearing. The hearing was then adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Leebron Grand Court Tavares 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 Ann L. Brunette Post Office Box 304 Fruitland Park, Florida 34731 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Michael’s Store, Inc. (“Michael’s”), committed an unlawful employment practice against Petitioner (“Mr. Hughes”) by discharging him.
Findings Of Fact Michael’s operates a store in Clermont, Florida. During all times relevant to the instant case, Amy Wsol was the manager of the Clermont store. Mr. Hughes was the Clermont store’s operations manager and subordinate to Ms. Wsol. Elisa Griffin was a cashier at the Clermont store. In April of 2015,1/ Ms. Griffin notified Michael’s human resources department that Ms. Wsol was not enforcing or not complying with Michael’s procedures regarding e-mail captures and other cashier practices.2/ Michael’s conducted an investigation during the summer of 2015 and concluded in August or September of 2015 that no action would be taken. Michael’s notified all employees interviewed during the course of the investigation that there would be no retaliation against Ms. Griffin. Nevertheless, immediately after the investigation’s conclusion, Ms. Wsol mandated that the other managers in the Clermont store document all of their interactions with Ms. Griffin and place those documents (“the allegedly retaliatory documents”) in Ms. Griffin’s personnel file. Mr. Hughes had the additional task of using an in-store surveillance system to monitor Ms. Griffin during her shifts. Mr. Hughes felt that Ms. Wsol’s orders regarding the monitoring of Ms. Griffin were contrary to Michael’s directive that Ms. Griffin was to suffer no retaliation because of the investigation. Mr. Hughes also felt that Ms. Wsol’s orders were immoral and unethical. The stress associated with complying with those orders had an adverse effect on Mr. Hughes’ health. Mr. Hughes is an insulin dependent diabetic, and his blood sugars became unmanageable. At one point, his endocrinologist advised him that hospitalization may be necessary if his condition did not improve. In December of 2015 or January of 2016, Mr. Hughes applied for an assistant manager position at a store that Michael’s was about to open in Orlando, Florida. While the position in the Orlando store would have been a lateral move for Mr. Hughes, it appealed to him because the Orlando position would be salaried, and Mr. Hughes was an hourly employee at the Clermont store. In January of 2016, Mr. Hughes reported Ms. Wsol’s orders regarding the allegedly retaliatory documents to Michael’s Human Resources Department. At this time, he also made copies of the documents so that he would have evidence that Ms. Wsol violated the directive that Ms. Griffin was to suffer no retaliation. Mr. Hughes did not have any authorization from Michael’s to copy the contents of Ms. Griffin’s personnel file. In February of 2016, Mr. Hughes met at the Clermont store with Dennis Bailey, one of Michael’s district managers, regarding Mr. Hughes’ allegations about Ms. Wsol. Mr. Bailey told Mr. Hughes that his allegations were being investigated. As for his request to be transferred, Mr. Bailey told Mr. Hughes that he would not be forced by a complaint to transfer Mr. Hughes to a different location. While Mr. Bailey did not completely rule out the possibility of transfer, he stated that Mr. Hughes would probably have to accept a demotion and a loss of benefits. In March of 2016, Ms. Wsol went on medical leave, and Mr. Hughes ran the Clermont store until April Skidmore arrived in April of 2016 to serve as acting store manager. At the end of May 2016, Ms. Griffin asked Mr. Hughes how she could obtain a copy of her personnel file. Mr. Hughes told her that she could request a copy from Ms. Skidmore or from Michael’s Human Resources Department. On June 14, 2016, Mr. Hughes received a call from Leah Frye, who worked in the Human Resources Department. Ms. Frye asked Mr. Hughes if Ms. Griffin had approached him about obtaining a copy of her personnel file. Mr. Hughes responded affirmatively and relayed that he had instructed Ms. Griffin on how she could obtain a copy of her personnel file. Mr. Hughes did not tell Ms. Frye that he had made a copy of the allegedly retaliatory documents in January of 2016. After Ms. Griffin received a copy of her personnel file, she stated to Mr. Hughes on June 15 or 16, 2016, that certain documents were missing. Ms. Griffin made that statement because she had expected to see documentation of compliments paid to her by customers. Ms. Griffin was also expecting to see documentation regarding the investigation of Ms. Wsol. However, none of those documents were in her personnel file. Mr. Hughes then examined Ms. Griffin’s personnel file, and discovered that the allegedly retaliatory documents were not there. Mr. Hughes then told Ms. Griffin about the missing documents and stated that he would transmit a copy of them to her upon receiving a request from her attorney. Mr. Hughes received such a request on June 17, 2016. At that point, Mr. Hughes elected to make a copy of his own personnel file because he was worried that its contents would be altered in an effort to retaliate against him. Accordingly, Mr. Hughes asked Mary Pearman, one of the other assistant managers at the Clermont store, to watch him copy his personnel file and sign a statement indicating that the documents he copied represented its complete contents. On June 29, 2016, Mr. Hughes received a call from Chad Romoser, the Director of Michael’s Human Resources Department. Mr. Romoser asked Mr. Hughes if he had made a copy of his personnel file and if he had asked a coworker to witness him doing so. Mr. Hughes responded affirmatively and stated that he copied the contents of his personnel file because the allegedly retaliatory documents had disappeared from Ms. Griffin’s file. Mr. Hughes then asked Mr. Romoser why the allegedly retaliatory documents were not transmitted to Ms. Griffin after she requested a copy of her personnel file. Mr. Romoser responded by stating that Michael’s Human Resources Department had no knowledge of the documents. Mr. Hughes then inquired about the status of the investigation pertaining to his report about the allegedly retaliatory documents. Mr. Romoser stated that after Mr. Bailey had met with Mr. Hughes in February of 2016, Mr. Bailey reported that Mr. Hughes was a “whiny individual” attempting to force Michael’s to give him a promotion. On June 29, 2016, Michael’s initiated an investigation of Mr. Hughes. Mr. Hughes was suspended with pay and required to relinquish his keys to the Clermont store. On July 6, 2016, Michael’s discharged Mr. Hughes. Mr. Hughes learned through a telephone conversation with Mr. Romoser that he had been discharged from Michael’s for intimidating Ms. Pearman3/ and for lying to the Human Resources Department. Mr. Hughes did not learn until filing his Charge of Discrimination with the Commission that Michael’s also discharged him for releasing personal and confidential information. Mr. Hughes was a credible witness. The undersigned finds that his testimony reflected his best recollection of the events pertinent to this case. However and as discussed below, even if all of Mr. Hughes’ testimony were to be accepted as true, Mr. Hughes has failed to present a prima facie case of retaliation under the Florida Civil Rights Act.
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 Thomas C. Hughes’ Petition for Relief from an unlawful employment practice.5/ DONE AND ENTERED this 19th day of October, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 19th day of October, 2017.
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
