The Issue The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.
Findings Of Fact Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay. Petitioner apparently declined the position. When she did so, Respondent terminated her. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989. COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Latricia W. Dukes 4189 Tatum Street Orlando, FL 32811 Gale Brandy Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741
The Issue The issue for determination is whether Pamela Guenther (Petitioner) was subjected to employment discrimination by Douglas C. Hall, M.D., P.A., (Respondent), due to Petitioner's age in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was born April 7, 1955. Respondent is a medical doctor who practices in Ocala. In January 2006, Respondent hired Petitioner part-time as the bookkeeper for Progressive Genomics, Inc. (PGI), a nutrition research company operated by Respondent in conjunction with his medical practice. PGI and Respondent’s medical practice in obstetrics and gynecology shared both facility and staff. Respondent was beset with financial trouble resulting from insufficient bank funds and an Internal Revenue Service (IRS) audit. In April 2006, Respondent sold the building housing his medical practice and PGI. He simultaneously closed PGI and relocated his medical practice to another location with a specialty in cosmetic medicine. At the same time that Respondent closed PGI, he discharged all older female employees, with exception of those necessary to operation of his medical practice. Respondent then hired new personnel, all under age 50 to replace the terminated employees. Petitioner was also elevated from her part-time position to full-time by Respondent as Respondent’s office manager, giving her a power of attorney to use in her execution of responsibility over business matters related to his practice. This unique exception (hiring of Petitioner) to Respondent’s hiring practice of only hiring employees under age 50 was due to influence of Petitioner’s daughter, who also worked for Respondent. Respondent required Petitioner, over Petitioner’s objection, to work from her home, requiring her to work under different and less favorable terms and conditions of employment than the other employees. Additionally, the separation from co- workers made Petitioner’s job more difficult. Isolating Petitioner from her coworkers was intentional on the part of Respondent due to Petitioner’s relatively greater age in comparison to the other workers. Petitioner and Respondent had other disagreements in the course of her employment as Respondent’s office manager. Respondent directed Petitioner to write checks with insufficient funds to pay them. Respondent also directed Petitioner to ignore IRS notices and write paychecks to staff without time cards or other verification of hours worked. Relying on what appeared to be the offer of permanent employment by Respondent in April 2006, Petitioner sold her bookkeeping business and, along with her partner, sold a coffee shop business at the time she accepted Respondent’s offer and went to work for him as his office manager. Respondent was the employer of more than 15 people, and therefore was not exempt from requirements of the Florida Civil Rights Act of 1992. Respondent provided all of his employees with diet pills to improve their appearance through prescriptions for the drug “Adipec.” According to Petitioner, who was given one of these prescriptions, Respondent sought “a certain age, a certain weight, and a certain look” in his employees. At one time Respondent had a picture of Respondent, surrounded by youthful female employees, placed on a billboard to promote his medical practice. On June 20, 2006, Respondent told Petitioner in a telephone conversation that her “services were no longer needed.” A female individual, Laurie Johnson, who is 33 years old, replaced her. Petitioner seeks to be awarded back pay for her last paycheck of $1,240 on which Respondent stopped payment, plus a year’s wages in the amount of $26,000 at a rate of $500 per week for 52 weeks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered directing that Respondent cease the unlawful discriminatory practice of employment on the basis of age, and awarding Petitioner awarded back pay for her last paycheck of $1,240, plus a year’s wages in the amount of $26,000; and that all amounts be paid to Petitioner within 90 days of entry of a final order. DONE AND ENTERED this 29th day of June, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Pamela Guenther 801 Northwest 75th Terrace Ocala, Florida 34482 Laurie Johnson Douglas C. Hall, M.D., P.A. 2801 Southeast 1st Avenue Ocala, Florida 34471
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Ann K. Hubert, is a thirty-five year old female. On February 4, 1992, she began employment with respondent, Darroch, Inc. d/b/a Dockside Imports (Dockside), as a part-time cashier at respondent's store in Newberry Square in Gainesville, Florida. After a promotion to a full-time position some six weeks later, she continued working until May 11, 1992, when she was terminated for what respondent says was poor job performance. Petitioner contends, however, that she was actually terminated because of her pregnancy. These contentions form the basis for this controversy. Dockside has a chain of retail stores selling items ranging in size from figurines to furniture. Each store has a manager, assistant manger, and an assistant to the assistant manager known as the first, second and third keys, respectively. In addition, each store employs stock clerks, usually males, to assist in the more physically demanding activities. Except on a few isolated occasions, at least two, and sometimes three, employees would be present in the store at any one time. During petitioner's tenure as a full-time employee at Dockside, she occupied the position of third key. All of the key positions were held by females. During her first days on the job as a part-time cashier, petitioner was described by her former manager, Betty Hill, as being a "go-getter," "wonderful," and "fantastic." Based on that performance, in March 1992 petitioner was promoted to third key, a full-time position. Within a short period of time, however, her work performance began deteriorating, and Hill began hearing complaints from virtually every other store employee concerning petitioner's performance and attitude. In addition, Hill had at least one customer personally lodge a complaint against petitioner. These complaints began before petitioner learned she was pregnant and continued until her termination. In March 1992, petitioner first suspected that she might be pregnant and she promptly advised Hill of her suspicions. Hill counseled her to make a doctor's appointment as soon as possible to confirm her pregnancy. This was done in early April 1992 and was reconfirmed "a couple of weeks later." After her second visit to the doctor, petitioner advised Hill that, pursuant to her doctor's orders, she could not lift items weighing more than fifteen to twenty pounds since she had suffered a miscarriage in 1977. Petitioner described Hill's reaction to her pregnancy as being positive, and that Hill "was pretty good about making sure that (she) didn't lift anything heavy." Indeed, Hill instructed the stock clerk that petitioner was to do no heavy lifting. Except for this precautionary measure, petitioner's job responsibilities were not changed. Before and after she discovered she was pregnant, petitioner's job duties included operating the cash register, waiting on customers, setting up stock, opening the store in the morning, helping customers carry items to their cars, cleaning, shelving, and the like. She was also responsible for moving small boxes from trucks to the stock room several times per week when shipments arrived. When heavy items required moving, the stock clerks were available to perform this task. Because the delivery of heavy items occurred infrequently and was known several days in advance, petitioner was not required to carry heavy furniture items from the truck to the store since extra persons could be scheduled to be on duty and perform that job. Hill's assistant, Elise Dees, came to work daily around 1:00 p. m. which was just before the end of petitioner's shift. Beginning in early March, Dees always found "nothing was done" by petitioner, including such tasks as shelving, cleaning the glass on tables and windows, vacuuming the floor and the like. In addition, petitioner would always complain she was not "feeling good." According to Dees, she found petitioner's job performance to be "unsatisfactory" at least three to four days per week. Dees also observed that petitioner was always sitting on a box at the back of the store rather than in the front area where she could assist customers. At hearing, petitioner says that she was forced to sit down due to dizziness caused by her pregnancy. In any event, Dees suggested petitioner sit on a bar stool by the cash register in the front of the store in order to be closer to the customers but petitioner declined to do so. During the week of May 4, 1992, petitioner took a previously scheduled one-week vacation to attend a wedding. While petitioner was on vacation, the district manager noticed that store morale and teamwork improved, and a "complete change" in the store environment occurred. Because of this, a decision was made to terminate petitioner immediately upon her return from vacation. It was decided that a demotion would not be practicable since this would not improve the decline in employee morale and teamwork if petitioner stayed in another position. When she returned to work on May 11, 1992, petitioner was met in the parking lot by Hill, who told her that she was being terminated effective immediately. Her position was filled that day by another individual whose gender is not of record. It is noted that petitioner was not dischargd because of a fetal protection policy, nor was she discharged because her pregnancy prevented her from performing her assigned tasks. Rather, she was terminated because of her poor work performance since early March 1992, including its negative impact on co-worker's morale and performance. Therefore, respondent did not commit an unlawful employment act in discharging petitioner. There was no evidence that Dockside had any previously articulated policy per se regarding pregnant employees, nor was there evidence that a similar situation had previously ever arisen. At the time of hearing, Dockside was employing at least one pregnant employee and was providing that employee the same type of accommodations offered petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of December, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Steven M. Scheck, Esquire 309 North East First Street Gainesville, Florida 32601-3338 Ms. Deborah Was 1155 South Semoran Boulevard Winter Park, Florida 32792
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Julie Wells is the principal of AccuStaff.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Van Gandy be dismissed. DONE AND ENTERED this 10th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 December, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julie Wells AccuStaff 5710 North Davis Highway, Suite 5 Pensacola, Florida 32503 Van Gandy 8580 Vickie Street Pensacola, Florida 32514 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Progressive American Insurance Company is a property and casualty insurance company. It markets auto insurance to drivers who are ordinarily non- insurable by standard insurance companies. The Company's claims organization includes 18 claims offices throughout the state, including the relevant Gainesville claims office. The Petitioner was hired as a claims office assistant on December 17, 1986. She worked in that capacity in the Gainesville office throughout the course of her employment. Claims office assistants are clerical employees who perform secretarial tasks, such as typing, filing and answering the telephone, and also perform insurance work related to the claims processing, such as personal injury protection (PIP) and small loss claims. Claims office assistants, such as the Petitioner, also provide support to the adjusters in the office by typing their dictation and taking down information on accident reports or loss reports, as well as creating files. The Gainesville claims office is a small branch office and as of December 1, 1986, was staffed by a Branch Manager, Douglas Helton, two claims adjusters and two claims office assistants, one of whom was the Petitioner. Douglas Helton was promoted to the position of Branch Manager in the Gainesville office in mid-1986. He hired Debbie Fuller and supervised her throughout her tenure with the Company. Progressive has adopted a business philosophy known as "management by objectives." Under this philosophy, each employee is assigned objectives which explain what is expected and the standards involved with the job. The employee's performance is then measured against those standards. Employees receive an overall numerical assessment of their performance on a 1-4 scale. The average score on performance evaluations in the Florida division of the Company has ranged from about 2.86 to 2.92. When the Petitioner was hired, she was placed in a three-month training plan by the Branch Manager and was assigned a set of objectives. Her performance was evaluated against these objectives at the end of 90 days, and she was given a 2.44 overall rating. Mr. Helton regarded her work as satisfactory at that time. The Petitioner was then assigned another set of three-month objectives. These objectives included the assignment to her of personal injury protection work, as well as small losses work for the first time. She was given individualized training by Helton and the other claims office assistant, Christine Bivens. She applied for and obtained a temporary license to do PIP claims work, which was valid from March of 1987 to March of 1988. She received another performance evaluation at the end of the second three-month period, with a score of 2.597. Mr. Helton, again, described her performance as satisfactory, although her score was below average. In June of 1987, Helton assigned the Petitioner another set of performance objectives, this time for six months. These objectives also included the assignment to her of PIP claims work. Her performance was evaluated again at the end of six months in December of 1987. This time, she scored 2.0, which is the lowest score an employee can receive before he or she is put on a 30-day performance probation, also known as "short term objectives." The Petitioner's performance was deficient because of non-timely processing of claims. Although her PIP case load was only about one-quarter of that of claims assistant, Christine Bivens, she allowed PIP files to "fall off her diary." This means that the medical bills involved were not being paid or timely paid. One such failure to pay medical bills actually resulted in a lawsuit being filed against her employer. When Mr. Helton reviewed some of her files in the process of preparing her performance evaluation, he discovered that most of the files had not been timely processed. She also received a poor rating for her work in typing dictation. Mr. Helton received complaints from all of the workers in the office concerning the Petitioner's typing skills and had orally counseled her in the past regarding this aspect of her work. Another major area of performance deficiency involved the Petitioner's failure to secure a permanent PIP and small loss license. She took the examination for the license and did not pass it. She was scheduled to take it again in November of 1987, but failed to do so. Mike Painter, the claims adjuster, had a bad experience with the Petitioner's work performance. He had a problem with her typing, which was characterized by a high level of inaccuracy and delay. He became sufficiently dissatisfied with her typing that he began doing his own typing. He discussed these problems with Mr. Helton on a number of occasions. He also had experience with the Petitioner taking down inaccurate information on loss reports. Mr. Painter found the Petitioner erratic in her attention to detail and that her work pace was significantly slower than the rest of the people in the office. Christine Bivens, another co-worker, also testified regarding the Petitioner's performance. Her initial performance during the first six months was acceptable, but then she began slowing down her work production. Because of this, Ms. Bivens had to put more time, herself, into the dictation typing and the loss reports She complained to Mr. Helton, as well; and Mr. Helton counseled the Petitioner concerning these deficiencies. After these counseling sessions, she would improve her performance for a short while; but the improvement was only temporary. Mr. Helton prepared Ms. Fuller's final performance evaluation around December 17, 1987. The two of them discussed the evaluation; and although she was not content with it, she ultimately accepted it. In the meantime, the Petitioner had become pregnant and began discussing the matter of maternity leave with Mr. Helton. In October or November of 1987, she had several conferences with him about the subject matter of her leave. Two of these conferences were attended by Christine Bivens. During the course of these meetings, Ms. Fuller requested a maternity leave of eight to 12 weeks. Mr. Helton told Ms. Fuller that she would not be provided a 12-week leave. Ms. Bivens testified that Mr. Helton told Ms. Fuller that he could not approve a 12-week leave. Sometime in December of 1987, Ms. Fuller began having premature contractions and told Mr. Helton she would not be able to work a full eight-hour day. Mr. Helton accepted that situation and told her she could work whatever hours per day she wanted to work. She thus began working five or six hour days. On December 17, 1987, Mr. Helton wrote a memorandum to the Human Resources Office of his Company, regarding Ms. Fuller's performance and her upcoming maternity leave. In that memorandum, he criticized her performance, writing that she demonstrated "minimal commitment to excellence and handles her responsibilities in a passive manner." He also noted that Ms. Fuller had requested a three-month leave of absence which he had refused. In this memorandum, Mr. Helton also indicated that he intended to hold her employment position open for her for a period of only four weeks. When he drafted this memorandum and prepared the Petitioner's performance evaluation, he gave some consideration to putting her on "thirty-day objectives." Under the circumstances of her imminent maternity leave, he decided that such an action would be inappropriate and assigned her objectives for May 17, 1988 instead. The Respondent has a policy concerning leaves of absence by which employees with less than one year of service are eligible for a four week leave of absence. Employees with between one and five years of service are eligible for a six-week leave. The Petitioner had one year of service, effective December 17, 1987. Therefore, she was qualified; and, indeed, the Respondent determined that she should have a six-week leave of absence related to her pregnancy. The Petitioner's supervisor, Mr. Helton, advised the Petitioner that she was not entitled to and would not receive a 12-week leave of absence, as she requested. Ms. Fuller also acknowledged in her testimony that Tammy Taylor, who worked in the Human Resources or personnel office of the Respondent, had informed her that she was entitled to a six-week leave of absence. Her colleague, Ms. Bivens, recalled that both Mr. Helton and Ms. Fuller had checked with the Human Resources office of Progressive and that both had learned that she was entitled to a six-week leave. Robin Hart, who worked in the Human Resources office at the time, told Ms. Fuller that she was entitled to and could take a six-week leave of absence and that any leave past that six-week period would be unapproved, as not being in accordance with Company policy. The Petitioner received a note from her treating physician on December 22, 1987 instructing her to discontinue her activities, including regular employment as of that date. Ms. Fuller initially testified at the hearing that she then met with Mr. Helton on that date, gave him the note and had a conversation with him concerning her leave of absence. She later changed her testimony, however, upon introduction by Progressive of evidence showing that Mr. Helton was on vacation on that date. She also changed her testimony regarding her last day at work. She had initially testified that the date was January 4, 1988, but following testimony by Christine Bivens, her co-worker, to the effect that her last day was December 29, 1987, she agreed that was her last day of work. Thus, she continued to work after her doctor had instructed her to cease her employment pending her delivery. Ms. Fuller, instead of personally discussing her leave with Mr. Helton on the final occasion before she actually left her employment, left a note for him on his desk while he was on vacation, along with her request for a 12-week leave of absence from January 4, 1988 through March 29, 1988. Upon his return from his Christmas vacation, Mr. Helton saw the leave request and reviewed it. He checked the box on the form marked "cannot approve" and wrote on the form "maximum allowed for 1 yr. employee is 4 weeks. Debbie requests excess of 12 weeks." Mr. Helton then submitted the leave of absence form to the Human Resources office in Tampa and conversed with Marilyn Kaschner of that office concerning the length of the requested leave and how long he should leave the Petitioner's job open for her. Ms. Kaschner informed him that the Petitioner was entitled to a six-week leave of absence based upon her tenure with the Company, and Mr. Helton agreed with that. That conversation occurred sometime between January 15th and the end of January of 1988. At approximately this time, Mr. Helton hired Wendy Rosenberg, as a full-time claims office assistant, and Renee Jackson, as a part-time claims office assistant. Ms. Fuller's replacement was required because the Gainesville office was very busy during the fall of 1987 and the early part of 1988. Ms. Rosenberg began employment on January 15, 1988, and Ms. Jackson was employed on January 25, 1988. Ms. Jackson was hired into a newly-approved part-time position, and Ms. Rosenberg replaced Ms. Fuller. Both employees were advised when they were hired that if Ms. Fuller returned upon the expiration of her maternity leave, she would have her choice of either the full-time or part-time positions which Ms. Rosenberg and Ms. Jackson were filling. In fact, Ms. Fuller did not return within the six-week time period. Mr. Helton subsequently contacted his supervisor, Jim Krahn; and they decided voluntarily to hold her position open for another week. She was eventually terminated, effective February 29, 1988, some nine weeks after her last day of work. Mr. Krahn at this time authorized Mr. Helton to permanently hire Ms. Rosenberg and Ms. Jackson. Ms. Fuller testified about a number of conversations she allegedly had with Mr. Helton during 1988. According to Ms. Fuller, the first one took place about the second week of January at the Gainesville office, attended by Ms. Fuller, Mr. Helton, Ms. Bivens and two claims adjusters in the office. Ms. Fuller maintains that Mr. Helton told her that he had turned in her "leave papers" and that things were fine and that there was no problem. Mr. Helton did not recall the conversation, but was positive that he would not have told her that everything was fine with her leave request because it was an excessive request. In any event, Ms. Bivens, who was present during the conversation, had no recollection of the tenor of it. However, under the circumstances under which the conversation apparently was made with a number of other employees present, it is unlikely that any in-depth discussion of the propriety of the leave request was entered into. In any event, Ms. Fuller had been informed otherwise, by the Human Resources office in Tampa, that she was only entitled to six weeks of leave. Both Mr. Helton and Ms. Fuller had conversations in March regarding her employment. Mr. Helton noted that the dates of the conversations were March 16 and 21, 1988, as he noted them on Ms. Fuller's termination form. During the first conversation, he advised Ms. Fuller that he did not have a position for her in his office. This is when Ms. Fuller learned of her ultimate termination. He did not have a conversation with her between February 29th and March 16th because he thought that Human Resources was going to send her a termination letter. The first conversation with her thus occurred on March 16th concerning the subject of her termination. Following this conversation, Ms. Fuller called Ms. Hart at the Human Resources office and informed her that Mr. Helton had guaranteed her a job when she wanted to return from maternity leave. Ms. Hart advised Mr. Helton of this representation and he denied it. Subsequently, on March 21st, there was an angry conversation between Mr. Helton and Ms. Fuller concerning what Mr. Helton believed to be Ms. Fuller's misrepresentation of his earlier statement concerning her job tenure and the availability of a position whenever she wanted to return. In any event, Mr. Helton, on March 21, 1988 executed Ms. Fuller's termination form and on the second page of the form, indicated she was ineligible for rehire. He considered her ineligible because her past performance bad been substandard and also because he felt that she had made misrepresentations to the Human Resources office concerning the conditions under which he had informed her that she could return to work. Accordingly, when there was later an opening in the Gainesville office for a claims office assistant, he did not consider offering Ms. Fuller that employment. Ms. Marilyn Kaschner testified about the company leave policy and statistical records of leaves of absence for the claims organization of Progressive. She reviewed and compiled a list of all leaves of absence for the last two and one-half years for the claims office portion of the company's operations in Florida. This list showed that eight employees, in addition to Ms. Fuller, had taken leaves of absence during that time period. Four of those leaves of absence were for childbirth. In each instance, the employee was allowed to return to her job. In those instances, the employees had taken leaves of absence which were in accordance with the company's leave of absence duration policy. It is also noteworthy that the Petitioner was accorded short- term disability insurance benefits during her leave of absence in accordance with company policy.
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 arguments of the parties, it is, therefore, RECOMMENDED that the Petition of Debbie Fuller be dismissed. DONE and ENTERED this 4th day of December, 1989, in Tallahassee Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-480 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but subordinate to the Hearing Officer's findings on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted, except for the last sentence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Respondent's Proposed Findings of Fact Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: John P. McAdams, Esq. CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. P.O. Box 3239 Tampa, FL 33601 Carla D. Franklin, Esq. P.O. Box 694 Gainesville, FL 32601 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue Whether Respondent, Sojourn Hospitality-Naples Bay Resort, discriminated and retaliated against Petitioner, Richard Puccini, on the basis of his sex, in violation of section 760.10, Florida Statutes.
Findings Of Fact The record is comprised solely of Petitioner’s Exhibits 1 and 2, which constitute inadmissible hearsay for which no exception to the hearsay rule has been established.3/ Because no testimony or other admissible evidence exists, as to which such hearsay could be used to explain or otherwise supplement, there can be no findings of fact.
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 in this proceeding finding that the Petitioner failed to establish that Respondent discriminated against him on the basis of his sex or retaliating against him and dismissing the Petition in its entirety. DONE AND ENTERED this 29th day of January, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2019.
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.
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 Whether Respondent committed one or more unlawful employment practices against Petitioner as alleged in the subject Petition for Relief.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was an employee of Respondent with permanent status in the state career service system. Petitioner began his employment with Respondent on February 26, 2001, and was assigned to the Lake Worth area until his employment was terminated on January 30, 2009. During his tenure with Respondent, Petitioner worked as a K-9 officer as the handler of a dog trained to detect drugs. Petitioner was frequently involved with high-risk traffic stops. Petitioner received a “meets standards rating” on his most recent performance evaluation. Prior to the events that led up to this proceeding, Petitioner had no history of being disciplined by Respondent. Dr. Richard Marques specializes in internal medicine and treats a broad spectrum of medical issues including endocrine problems. He has been Petitioner’s physician for eight years. Prior to September 2003, Petitioner began to experience fatigue, irritability, and low energy. Petitioner testified that he slept up to 16 hours some days. During that time, and at all times relevant to this proceeding, Petitioner was working his assigned duties. Those duties included a 40-hour shift plus occasional overtime, primarily on weekends. At the request of Dr. Marques, on September 12, 2003, Petitioner presented for blood work at LabCorp, an independent, reputable, testing lab. From the results of the testing, Dr. Marques determined that Petitioner suffered from low testosterone levels or a condition known as hypogonadism. Dr. Marques recommended that Petitioner seek treatment for his testosterone deficiency from a physician or facility specializing in problems of the endocrine system. Dr. Marques did not recommend a particular physician or facility to Petitioner. Instead, Dr. Marques left that decision to Petitioner. Dr. Marques contemplated at the time of his recommendation that Petitioner would be examined in a hospital or other medical facility by a doctor specializing in the endocrine system. Dr. Marques testified that there are two types of hypogonadism, with one type originating from the adrenal gland and the other originating from the pituitary gland. Testing of the type an endocrinologist would do in a testing facility such as a hospital is required to determine the source of the testosterone secretion. Dr. Marques referred Petitioner for further evaluation because he does not do the type of testing that an endocrinologist does. After reading an advertisement in a magazine for a facility named PowerMedica in January 2004, Petitioner sought treatment from that facility. After reviewing PowerMedica’s website, Petitioner concluded that it was a licensed medical facility and submitted a form medical history. In response to his submittal, someone purporting to be from PowerMedica instructed Petitioner to submit a blood sample for analysis by LabCorp. Petitioner complied with that request. Thereafter, Petitioner received a telephone call from someone at PowerMedica who purported to be a doctor. Following that telephone conversation, Petitioner received at his home via Federal Express a shipment that contained testosterone, which is an anabolic steroid. An anabolic steroid is, pursuant to the provisions of Section 893.03(3)(d), a Schedule III controlled substance. Section 893.13(6)(a), Florida Statutes, provides as follows: (6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. At no time relevant to this proceeding did Petitioner enter the building that housed PowerMedica, nor was he physically examined by anyone associated by PowerMedica. Petitioner followed up with Dr. Marques while Petitioner was taking the anabolic steroids. Dr. Marques considered Petitioner’s treatment to be appropriate. Dr. Marques saw no signs that Petitioner was abusing the anabolic steroids, and noted that Petitioner’s condition improved. Petitioner stopped receiving anabolic steroids from PowerMedica in October 2004. Dr. Marques wrote a note on September 22, 2003, reflecting, in relevant part, the following: “. . . given the severity of his high viral titer,4 I have asked him to change his night shift duty to day time.” After Petitioner requested that he be reassigned to day-time duty and presented that note to his superiors, Respondent reassigned Petitioner to day duty. At all times relevant to this proceeding, Petitioner was able to perform his job duties. Other than the request for a change from the night shift to the day shift, Petitioner did not tell Respondent that he was having difficulties performing his duties. At no time prior to his interview on July 10, 2008, which will be discussed below, did Petitioner tell Respondent that he was taking anabolic steroids, that he suffered from low testosterone levels, or that he suffered from hypogonadism. At no time did Petitioner request that he be evaluated to determine whether he was fit for duty. In early 2005, it became public knowledge in south Florida that the U.S. Food and Drug Administration (USFDA), working in conjunction with the Broward County Sheriff’s Office (BCSO), was investigating PowerMedica based on allegations that it had unlawfully sold steroids and Human Growth Hormones. As part of its investigation, the USFDA seized records pertaining to PowerMedica’s customers. There was no evidence that any information seized by the BCSO or the USFDA was illegally seized. The joint investigation culminated in the closure of PowerMedica’s operations. In March 2008, a sergeant and a lieutenant employed by Respondent and assigned to its Professional Compliance Bureau met with a sergeant employed by BCSO. During that meeting, the BCSO sergeant showed Respondent’s employees a list containing PowerMedica’s customers. That list contained Petitioner’s name. At Respondent’s request, in April 2008, the USFDA provided copies of records to Respondent that had been seized from PowerMedica. That information provided details as to Petitioner’s dealings with PowerMedica. On July 10, 2008, Petitioner was subjected to a formal interview by representatives of the Respondent. In that interview, Petitioner admitted his dealings with PowerMedica and, while denying any wrongdoing, admitted the material facts set forth above pertaining to those dealings. Petitioner declined to divulge the underlying condition for which he sought treatment. Further, Petitioner acknowledged that Dr. Marques had informed him that his insurance company would likely not pay for his treatment from PowerMedica or for similar treatment. Specifically, Petitioner admitted that he obtained testosterone without being examined by a PowerMedica physician, he admitted that he knew about the investigation and subsequent closure of PowerMedica, and he admitted that he knew the reasons for the closure of PowerMedica. Petitioner admitted that he never volunteered to come forward to Respondent or any other law enforcement agency to discuss his dealings with PowerMedica. Petitioner referred to himself as a victim of PowerMedica’s fraudulent practices, but he admitted that he never advised Respondent prior to his interview that he had been a victim of PowerMedica. On September 9, 2008, Respondent assigned Petitioner to administrative duty that was to be served at Petitioner’s residence from 8:00 a.m. to 4:00 p.m. Monday through Friday. The letter advising Petitioner of this assignment and setting the parameters for the assignment, included the following, beginning at the second full paragraph: You will remain on administrative duty until further notice. This action is being taken based upon the fact you are under investigation by this agency. You are to turn in all of your assigned division equipment including uniforms, badges, firearms, any department identification, and other division property. Your approval to work off-duty police employment (ODPE) and/or any type of agency secondary employment has been withdrawn for the duration of the administrative duty. Your eligibility to resume OPDE/secondary employment will be reviewed by your troop commander at the conclusion of the administrative duty assignment. Your failure to comply with this directive will subject you to disciplinary action. On November 14, 2008, Petitioner filed his Complaint of Discrimination with the Florida Commission on Human Relations. After that date, but before his termination, Petitioner requested permission to be able to work as a driver for Federal Express during hours other than the hours he was serving his administrative duties. Respondent denied that request. While Petitioner asserts that the denial was in retaliation for his filing the Complaint of Discrimination, that assertion is based on supposition. Petitioner presented no direct evidence to support his assertion and any circumstantial evidence is insufficient to establish the assertion. By letter dated January 14, 2009, and received by Petitioner on January 20, 2009 (the termination letter), Respondent terminated Petitioner’s employment. Approximately 20 days after his termination, Respondent retrieved from Petitioner the dog that Petitioner had handled for approximately three years. Petitioner asserts that Respondent took his dog in retaliation for his amending his Complaint of Discrimination to include a claim of retaliation relating to the denial of the request to work part-time for Federal Express. Again, Petitioner’s assertion is based on supposition and is not supported by direct or circumstantial evidence. The termination letter, which is part of Petitioner’s Exhibit 11, sets forth extensive factual allegations pertaining to Petitioner’s dealings with PowerMedica as the basis for the termination. The letter also set forth the statute and policies that Petitioner had allegedly violated. The letter cited the following as “Aggravating Circumstances”: This case is aggravated because through your training, work experience, and knowledge of the law you are held to a higher standard of reasonableness and conduct. You should have been well aware of the stigma attached to the type controlled substances you purchased and used, especially Petitioner points to Respondent’s characterization of anabolic steroids as having a “stigma” as evidence that Respondent discriminated against him based on his disability. That argument is without merit. The greater weight of the credible evidence established that Respondent terminated Petitioner’s employment based on its determination that Petitioner had unlawfully obtained and consumed a Schedule III controlled substance without obtaining a lawful prescription and because he failed to come forward with information about PowerMedica after he knew that PowerMedica was being investigated by the USFDA and the BCSO. Petitioner did not establish that Respondent’s articulated reasons for its employment decision were pretexts for an unlawful employment practice. Indeed, there was no evidence that as of the date of the termination letter, Respondent knew the nature of Petitioner’s medical condition, or that it had any reason to perceive him as being disabled.
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. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 23rd day of November, 2009.
