The Issue The issue to be resolved in this proceeding concerns whether the Petitioner had been discriminated against based upon race for alleged denial of lodging, as addressed in Chapter 760, Florida Statutes.
Findings Of Fact 1. The Findings of Fact are in essence as stated in the above Preliminary Statement concerning the Petitioner's lack of appearance at the hearing. The hearing was duly noticed at the last address of record for the parties, including the Petitioner. No appearance has ever been entered since the convening of the hearing and no communication, by the Petitioner, with the undersigned, telephonically, or in writing or otherwise has been made to explain her absence from the duly- scheduled hearing. She has provided no indication that she wishes to prosecute her claim. Accordingly, being advised in the premises, it is
Recommendation RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing this Petition for lack of prosecution, based upon the above-stated reasons. DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Betty McNair Post Office Box 1358 Perry, Florida 32547 Gregory S. Parker, Esquire The Parker Law Firm 315 West Green Street Post Office Drawer 509 Perry, Florida 32348
The Issue Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about July 1, 1995, on the basis of her race (white), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995. Petitioner is a white female and a licensed CNA. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure. Vermette hired Petitioner as a CNA on April 18, 1995. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station. Petitioner told Donahue that Samuels had thrown her around the room. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is enough of this.” Donahue told Petitioner to leave the room and wait in the employee break room. Donahue reported this incident to her superior, Vermette. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome. During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Jayne E. Griffith, pro se 2018 Gairloch Street Orlando, Florida 32817 Deborah Gibson, Esquire Jackson Lewis 390 North Orange Avenue Suite 1285 Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Petitioner was subjected to a hostile work environment condoned by Respondent due to Petitioner's race and sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner was previously employed by the Auditor General, Division of Public Assistance Fraud. That program, along with Petitioner, co-workers, and the persons in her chain of command, were later legislatively transferred to the Florida Department of Law Enforcement. On January 28, 1999, Petitioner filed a complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that the State of Florida, Office of the Auditor General discriminated against Petitioner in violation of the Florida Civil Rights Act of 1992, Sections 760.01- 760.11, Florida Statutes (1999). Allegedly, the discrimination was based on Petitioner's race (African- American) and sex (female). Petitioner claimed that Respondent's actions created a hostile work environment as a consequence of her race and/or sex. Petitioner has not been demoted, reassigned, or terminated by her employer. Petitioner complained of certain events that occurred in 1994 regarding the assignment of particular cases. She alleged that she was not being fairly treated in the assignment of pending cases. These events, which occurred in 1994, are time-barred from further consideration by virtue of Section 760.11(1), Florida Statutes, which requires filing of a complaint within 365 days of occurrence of an alleged violation. On one occasion on an unspecified date during her employment, a co-worker asked Petitioner whether her ponytail was real. On March 11, 1998, Regional Supervisor William Martin, a white male, typed a memorandum for Petitioner. The memorandum was precipitated by a conference between Petitioner and her immediate supervisor in which procedures regarding work hours, breaks, and lunch hours were discussed. Petitioner was told in the course of the conference that some staff members perceived Petitioner as "not playing by the rules." Petitioner responded through the memorandum typed by Martin. The memorandum set forth Petitioner's complaints concerning her work situation, inclusive of her observation that others were committing the same violations of policy of which she was accused with no repercussions occurring to them. Petitioner had the opportunity to review a draft of the memorandum and made corrections to the draft. Petitioner then signed the final version of the memorandum, which included Petitioner's express declination to pursue the matter further, stating that she "wanted my personal concerns and feelings on record." Nowhere in the memorandum does Petitioner allege that she has been treated differently on the basis of her race or her sex. There are two supervisors in Respondent's Jacksonville, Florida, office. Petitioner’s immediate supervisor is Laverne McKinney, an African-American female. The other supervisor in the Jacksonville office is Stan Stephens, a white male. The relationship between Stan Stephens and Petitioner is strained. The strained relationship is not due to racial or sexual discrimination. On one occasion during Petitioner's employment, Stan Stephens asked Laverne McKinney to instruct Petitioner to let him know when Petitioner would not be available to work until 5:00 p.m., so that the office could be properly manned until that time. The request followed an incident when Stephens, who usually leaves the office at 4:30 p.m., was unable to find someone to mind the office when he left. Unknown to Stephens, Petitioner had left early to perform official business for Respondent. On another occasion during Petitioner's employment, while Laverne McKinney was the designated "Acting Regional Supervisor," Stan Stephens called William Martin, a former supervisor at the time, on a travel issue regarding Petitioner. Martin was working in Respondent's Miami, Florida, office at the time and McKinney was away from the Jacksonville Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 13th day of February, 2001.
The Issue Whether Respondent Gulf Coast Community College (Respondent or the College) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by subjecting Petitioner Derek A. Robinson (Petitioner) to discrimination in employment or by subjecting Petitioner to adverse employment actions in retaliation of Petitioner’s opposition to the College’s alleged discriminatory employment practices.
Findings Of Fact Petitioner is an African-American male. The College is a public institution of higher education located in Panama City, Florida. In 1998, Petitioner was hired by the College to work in its custodial department as a custodian. Petitioner held that position until his termination on February 11, 2009. The College's custodial department is part of the College's maintenance and operations division (collectively, ?Maintenance Division?) managed by the campus superintendent. The two other departments within the Maintenance Division are the maintenance and grounds departments. During the relevant time period, there were approximately 40 to 50 employees in the Maintenance Division. Of those, there were approximately 21 to 28 custodians in the custodial department. Most of the custodians were African-Americans and there were only three Caucasian custodians. The Caucasian custodians were Tom Krampota, Josephine Riley, and Tommy Gillespie. Custodial staff typically work shifts beginning at 2:00 p.m. and ending at 10:00 p.m., Monday through Friday. They are generally assigned housekeeping duties for a specific building. In addition to Monday through Friday, the College is also open on most weekends. Prior to 2001, the College began designating one employee to work a non-rotating weekend shift. Unlike other custodians, the designated weekend custodian worked from 10:00 a.m. to 10:30 p.m. on Fridays and 6:00 a.m. to 6:30 p.m. on Saturdays and Sundays. The weekend custodian was not assigned to a particular building, but rather worked in various buildings as needed and was to be available to open doors to campus buildings during weekend hours. Petitioner was the designated weekend custodian from 2001 until his duties were changed in September 2008. Dr. John Holdnak, who worked for the College for 26 years in various capacities, including four years as Director of Human Resources, was the one who established the position of designated weekend custodian. Dr. Holdnak served as the College's Vice-President for Administration Services for his last eight years of employment with the College until leaving in July, 2008. As vice-president, Dr. Holdnak reported directly to the president of the College, Dr. James Kerley. Sometime prior to 2008, Dr. Holdnak observed that the departments in the Maintenance Division were underperforming, not adequately supervised, and failing to meet expectations. Dr. Holdnak observed that the Maintenance Division employees took excessive breaks and showed lack of effort in their work. For example, mold was found in some of the classrooms, an open window with a bird's nest was found in another, maintenance orders were backlogged, and Dr. Holdnak received a number of complaints from faculty and College employees regarding the Maintenance Division's level of service. As a result of Dr. Holdnak's observations, the College removed the campus superintendent from his position because of the superintendent's inability to manage line supervisors, provide leadership, or supervise personnel. After that, Dr. Holdnak personally supervised the Maintenance Division for a time in order to assess and develop a solution to the problem. Based upon Dr. Holdnak's assessment, the College sought applications for a new campus superintendent who could change and clean-up the culture of the Maintenance Division. At the time, the three department supervisors within the Maintenance Division were: Carlos "Butch" Whitehead for maintenance, Dan Doherty for custodial, and Ronny Watson for grounds. All three supervisors were Caucasian. The vacancy for the campus superintendent position was advertised. Dr. Holdnak encouraged John Westcott to apply for the campus superintendent position because he had previously worked with Mr. Westcott on a College construction project and was impressed with his vigor and work ethic. Mr. Westcott, a Caucasian, applied. So did custodial department supervisor, Dan Doherty, and three other candidates. Mr. Westcott disclosed on his application that he had been convicted of a felony twenty years prior to his application. Dr. Holdnak determined that Mr. Westcott's prior conviction would not impact his candidacy for the position. The applicants were screened by a selection committee composed of a number of College employees from various divisions, including Petitioner. Of the five applicants who applied, the selection committee's first choice was John Westcott, who was qualified for the position. Petitioner did not agree with the selection committee's first choice and was not impressed with Mr. Westcott during the screening process because Mr. Westcott referred to himself as the "terminator." Based upon the selection committee's first choice and the conclusion that Mr. Westcott satisfied the necessary criteria to change the Maintenance Division's culture, Dr. Holdnak recommended that the College hire John Westcott as the new campus superintendent. John Westcott was hired as campus superintendent in January 2008. Once Mr. Westcott was hired, Dr. Holdnak specifically directed him to take control of his departments, ?clean up the mess? and hold his mid-level supervisors responsible for their subordinates' results. Dr. Holdnak instructed Mr. Westcott to take a hands-on approach, physically inspect and visit the buildings to ensure cleanliness, increase effectiveness, stop laziness, and decrease work order backlogs. During his tenure, Mr. Westcott increased productivity and reduced backlogs. Mr. Westcott took more initiative than previous superintendents with cleaning and maintenance, and he conducted weekly walkthroughs. While Mr. Westcott was campus superintendent, the backlog of 400 work orders he had inherited was reduced to zero. During Mr. Westcott's first month as campus superintendent, he had an encounter with a Caucasian employee named Jamie Long. On January 31, 2008, Mr. Westcott issued a written memorandum to Mr. Long as a follow-up from a verbal reprimand that occurred on January 28, 2008. The reprimand was Mr. Westcott's first employee disciplinary action as campus superintendent. According to the memorandum, the reprimand was based upon Mr. Long's confrontation and argument with Mr. Westcott regarding the fact that Mr. Westcott had been ?checking-up? on him. According to the memorandum, Mr. Westcott considered "the manner in which [Mr. Long] addressed [him as] totally inappropriate and could be considered insubordination." Mr. Long disputed Mr. Westcott's version of the incident and later sent a letter to College President Dr. Kerley dated June 23, 2008, complaining about "the alleged incident of insubordination" and the "almost non-stop harassment by John Westcott." There was no mention or allegation in the letter that John Westcott was racist or had discriminated against anyone because of their race. After Dr. Holdnak left the College in July 2008, John Mercer assumed his responsibilities. Mr. Mercer, like Dr. Holdnak, had the perception that custodial work was below par based on complaints and personal observations. He therefore continued to direct Mr. Westcott to address these deficiencies to improve the custodians' performance. Petitioner was the designated weekend custodian when Mr. Westcott was hired. In February 2008, Dr. Holdnak discovered a problem with the amount of paid-time-off Petitioner received as a result of his weekend schedule. The problem was that if a holiday fell on a weekend, Petitioner would take the entire weekend off, resulting in a windfall of 37.5 hours in additional paid-time- off for Petitioner over other employees because his work hours on the weekends were longer. In order to correct the problem, in approximately March 2008, Petitioner was placed on a similar holiday pay schedule as all other employees. At the time, the then-director of the College's Department of Human Resources, Mosell Washington, who is an African American, explained the change to Petitioner. According to Mr. Washington, Petitioner was not happy about the change in his holiday pay schedule. Petitioner, however, does not blame Mr. Westcott for initiating the change. Because of the change in his holiday pay schedule, Petitioner was required to work or use leave time for the additional working hours during the Fourth of July weekend in 2008. Petitioner called and asked to speak with Mr. Westcott regarding the issue. During the phone call, Petitioner used profanity. After being cursed, Mr. Westcott hung up the phone and then advised Mr. Washington, who told Mr. Westcott to document the incident. The resulting written reprimand from Mr. Westcott to Petitioner was dated July 11, 2011, and was approved by Mr. Washington. When Mr. Washington presented Petitioner with the written reprimand, Petitioner refused to sign an acknowledgement of its receipt and abruptly left the meeting without any comment. Petitioner did not tell Mr. Washington that he believed he was being targeted or discriminated against because of his race. In addition to setting forth Mr. Westcott's version of what occurred, the written reprimand advised Petitioner that the College had a grievance procedure, and also stated: I have an open door policy and will gladly address any concerns you may have whether personal or job related. If you have a grievance, tell me, but in the proper manner and in the proper place. Petitioner did not take advantage of either the College's grievance procedure or Mr. Westcott's stated open door policy. The College maintains an anti-discrimination policy and grievance policy disseminated to employees. The College's procedure for employee grievances provides several levels of review, starting with an immediate supervisor, then to a grievance committee, and then up to the College's president. Under the College's anti-discrimination policy, discrimination and harassment based on race or other protected classes is prohibited. Employees who believe they are being discriminated against may report it to the Director of Human Resources. Likewise, harassment is prohibited and may be reported up the chain of command at any level. Petitioner acknowledged receipt of the College handbook and policies on August 17, 2007. In addition, both the College President, Dr. Kerley, and Vice President, John Mercer, maintain an ?open door? policy. After receiving the July 11, 2008, written reprimand, Petitioner spoke to both Dr. Kerley and Mr. Mercer, at least once, on July 15, 2008. Petitioner, however, did not tell them that he had been discriminated against because of his race. In fact, there is no credible evidence that a report of race discrimination was ever made regarding the July 11, 2008, written reprimand prior to Petitioner's termination. Petitioner, however, did not agree with the July 11, 2008 written reprimand. After speaking to Dr. Kerley and Mr. Mercer, Petitioner met with Jamie Long, the Caucasian who had earlier received a write-up from Mr. Westcott, for assistance in preparing a written response. The written response, dated August 4, 2008, and addressed to Mr. Washington, Mr. Westcott, and Mr. Mercer, stated: On July 25, 2008, I was called into Mosell Washington's office and was given a written letter of reprimand from John Westcott, the Campus Superintendent, which states that on July 3, 2008, I had used profanity in a phone conversation with him regarding my 4th of July work schedule. From the schedule that I received in February, from Mosell Washington, I believed I was off that weekend. I am writing this letter to dispute Mr. Westcott's version of our conversation and to protest the letter of written reprimand. Mr. Westcott says in the reprimand that I was insubordinate to him and had used profanity. I did not use profanity, and I do not believe that I was insubordinate in any manner to him during our brief conversation. I feel that my work record and my integrity speaks for itself. I have never been insubordinate, or been a problem to anyone until John Westcott, and had I known that I was supposed to be on the job that weekend, I would have been there. Mr. Washington, Mr. Westcott, and John Mercer all deny receiving the written response. In addition, contrary to the written response, at the final hearing, Petitioner admitted that he used profanity during the call and said ?ass? to Mr. Westcott. Moreover, the written response does not complain of race discrimination, and Dr. Kerley, Mr. Mercer, Dr. Holdnak, Mr. Washington, and Mr. Westcott all deny that they ever received a complaint of race discrimination regarding the incident. Evidence presented at the final hearing did not show that the written reprimand given to Petitioner dated July 11, 2008, was racially motivated, given in retaliation for Petitioner’s statutorily-protected expression or conduct, or that a similarly-situated non-African-American who used profanity to a supervisor would not be subject to such a reprimand. Mr. Westcott generally worked a more traditional Monday through Friday schedule and, because of Petitioner's weekend work schedule, had minimal contact with Petitioner. In fact, Mr. Westcott would not usually be on campus with Petitioner, except Fridays, and the two men rarely spoke until Petitioner's work schedule was changed in September 2008. During the weekends that he worked at the College, Petitioner was on-call and expected to return communications to his pager or mobile phone, even during his lunch breaks, regardless of his location. On Friday, August 22, 2008, after receiving a request from faculty member Rusty Garner, Petitioner’s supervisor Dan Doherty asked Petitioner to clean the music room floor. On Sunday afternoon, August 24, 2008, Mr. Mercer and Mr. Westcott were working when they received word from Mr. Garner that the music room floor had not been cleaned. After unsuccessful attempts to reach Petitioner by cell phone and pager, both Mr. Mercer and Mr. Westcott drove around the College campus to find him. They were unsuccessful. The reason Petitioner could not be reached was because he had left campus and had left his telephone and pager behind. According to Petitioner, he was on lunch break. Mr. Mercer and Mr. Westcott found another employee, Harold Brown, to help prepare the music room for Monday. Mr. Mercer was upset because he had to take time out from his own work to find someone to complete the job assigned to Petitioner. That same afternoon, Mr. Mercer reported the incident by e-mail to Mr. Washington and requested that appropriate action be taken. On August 27, 2008, Petitioner’s supervisor, Dan Doherty, issued a written reprimand to Petitioner for the August 24th incident. No evidence was presented indicating that the written reprimand was racially motivated, or that a similarly situated non-African-American who could not be located during his or her shift would not be subject to such a reprimand. In September 2008, Dr. Kerley unilaterally determined that no single employee should work his or her entire workweek in three days. He believed this schedule was unsafe, and not in the best interests of the college. He therefore directed Mr. Westcott and Mr. Mercer to implement a rotating schedule for the weekends. Mr. Westcott was not in favor of the change because it meant additional scheduling work for him to accommodate new rotating shifts. No credible evidence was presented that the schedule change was because of Petitioner’s race, or made in retaliation for Petitioner’s statutorily-protected expressions or actions. From August 27, 2008, through January 2009, there were no other disciplines issued to Petitioner or reported incidents between Petitioner and Mr. Westcott. In December, 2008, a group composed of most of the custodial employees, including Petitioner, conducted a meeting with the College's president, Dr. Kerley, and vice-president, Mr. Mercer. The group of custodians elected their new supervisor James Garcia, an Asian-Pacific Islander, as their spokesperson for the meeting. The custodians' primary purpose for the meeting was to address complaints regarding Mr. Westcott’s management style, his prior criminal conviction, and approach with employees. They felt that Mr. Westcott could not be pleased. Various concerns about Mr. Westcott expressed by the employees were condensed into three typed pages (collectively, ?Typed Document?) consisting of two pages compiled by Jamie Long and his wife Susan Long which contained 12 numbered paragraphs, and a third page with six unnumbered paragraphs. Mr. Garcia did not transmit the Typed Document to the president or vice- president prior to the meeting. Neither Jamie Long nor his wife attended the meeting. During the meeting, Mr. Garcia read several of the comments from the Typed Document and Dr. Kerley responded to each comment that was read. Mr. Garcia did not read through more than the first five of the 12 items listed on the Typed Document. The Typed Document was not reviewed by the president or vice-president and they did not retain a copy. Petitioner asserts the comment listed in paragraph 9 on the second page of the Typed Document constitutes a complaint or evidence of racial animus. Although not discussed at the meeting or reviewed by Dr. Kerley or Mr. Mercer, paragraph 9 states: During a recent candidate forum, Westcott used the term ?black ass? in regard to School Superintendent James McCallister. This was heard by at least two witnesses. Q. Are such racial slurs and inappropriate, unprofessional behavior condoned and acceptable? Mr. Westcott denies making the alleged statement referenced in paragraph 9 of the Typed Document. No evidence of other racial remarks allegedly made by Mr. Westcott was presented. There is no evidence that the College or its administration condoned the alleged statement. President Kerley, Vice President Mercer, and Mr. Washington all gave credible testimony that they were not made aware of the statement and that, if the statement in paragraph 9 of the Typed Document or any alleged racial discrimination by Mr. Westcott had been brought to their attention, immediate action would have been taken. As a result of custodial employees’ complaints about Mr. Westcott’s management style, Dr. Kerley and Mr. Mercer required Mr. Westcott to attend several sessions of management training. In addition, Dr. Kerley counseled Mr. Westcott against using harsh tactics and rough language that may be acceptable on a construction site, but were not appropriate on a College campus. On February 9, 2009, Mr. Westcott observed both Petitioner and a co-worker leaving their assigned buildings. He asked their supervisor, Mr. Garcia, to monitor their whereabouts because he thought that they appeared to not be doing their jobs. Mr. Westcott also told Mr. Garcia that, although the two workers may have had a legitimate reason for walking from their assigned buildings, he had not heard anything on the radio to indicate as much. The next day, on February 10, 2009, Mr. Garcia told Petitioner that Mr. Westcott had wanted to know where they had been headed when they left the building the day before. Petitioner responded by saying that if Mr. Westcott wanted to know where he was, Mr. Westcott could ask him (Petitioner). Later that day, Petitioner spoke to Mr. Washington on campus. Petitioner was very upset and said to Mr. Washington, ?What’s wrong with Westcott? He better leave me alone. He don’t know who he’s messing with.? Later that same afternoon, Petitioner had a confrontation with Mr. Westcott. According to a memorandum authored that same day by Mr. Westcott: I [John Westcott] had stopped outside the mailroom to talk with Beth Bennett. While talking with her I observed Derek [Petitioner] leave Student Union West. After seeing me, he returned to Student Union West and waited outside the door. Beth walked toward the Administration building and I headed through the breezeway. Derek approached me and said that he had heard that I wanted to ask him something. I asked him what he was talking about. He said that I wanted to ask him where he was going the evening before. I said ok, where were you going? Derek said that it was ?none of my f_ _ _ ing business.? I told him that since I was his supervisor, that it ?was? my business. At this time, he stepped closer to me in a threatening manner and said ?if you don’t stop f_ _ _ ing with me, I’m going to f_ _ _ you up.? I told him that if he would do his job, that he wouldn’t have to worry about me. He replied ?you heard what I said--- I’ll f_ _ _ you up?, as he walked back into SUW. I left the breezeway and went to John Mercer’s office to report the incident. Mr. Westcott’s testimony at the final hearing regarding the incident was consistent with his memorandum. While Petitioner’s version of the confrontation is different than Mr. Westcott’s, at the final hearing Petitioner admitted that Mr. Westcott had a legitimate question regarding his whereabouts and that he failed to answer the question. And, while he denied using the specific curse words that Mr. Westcott attributed to him, Petitioner testified that he told Mr. Westcott to leave him the ?hell? alone because he was doing his job. While there is no finding as to the exact words utilized by Petitioner to Mr. Westcott, it is found, based upon the testimonial and documentary evidence, that on the afternoon of February 9, 2009, Petitioner was confrontational towards Mr. Westcott, that Petitioner refused to answer a legitimate question from Mr. Westcott, that Petitioner demanded that Mr. Westcott leave him alone even though Mr. Westcott had a legitimate right to talk to Petitioner about his job, and that Petitioner used words that threatened physical violence if Mr. Westcott did not heed his warning. After Mr. Westcott reported the incident to Mr. Mercer, both Mr. Mercer and Mr. Westcott went to Dr. Kerley and advised him of the incident. Dr. Kerley believed the report of the incident and that Petitioner had threatened Mr. Westcott. Mr. Washington was then informed of the incident. After reviewing Petitioner’s employment history, including Petitioner’s recent attitude problems, as well as Mr. Washington’s own interaction the same day of the latest incident, Mr. Washington concluded that Petitioner should be terminated. Mr. Washington gave his recommendation that Petitioner be terminated to Dr. Kerley, who adopted the recommendation. The following day, February 11, 2009, Mr. Washington called Petitioner into his office and gave him a memorandum memorializing Petitioner’s termination from his employment with the College. The memorandum provided: This memorandum is written notification that because of a number of incidents which the administration of the college deems unprofessional, adversarial, and insubordinate, you are hereby terminated from employment at Gulf Coast Community College, effective immediately. At the time that he presented Petitioner with the memorandum, Mr. Washington provided Petitioner with the opportunity to respond. Petitioner told Mr. Washington, ?It is not over.? Petitioner did not state at the time, however, that he believed that his termination, change of schedule, or any disciplinary action taken against him were because of racial discrimination or in retaliation for his protected expression or conduct. Further, at the final hearing, Petitioner did not present evidence indicating that similarly-situated non-African- American employees would have been treated more favorably than was Petitioner for threatening a supervisor. Further, the evidence presented by Petitioner did not show that the decision to terminate him was based on race or in retaliation for protected expression or behavior, or that the facts behind the reason that Petitioner was fired were fabricated. Following his termination, Petitioner met with both Dr. Kerley and Mr. Mercer and apologized for acting wrongly. The empirical record evidence of discipline against College employees in the Maintenance Division during Mr. Westcott’s tenure does not demonstrate a tendency by Mr. Westcott or the College to discriminate against African- American employees. The majority of disciplines and the first discipline taken against Mr. Long by Mr. Westcott were administered to Caucasians. In total, Mr. Westcott only reprimanded five employees. Of these, three were Caucasian -- Mr. Long, Mr. Whitehead, and Mr. Doherty. Despite the fact that the majority of the custodians were African-American, only two African-Americans were disciplined -- Petitioner and Harold Brown. During Mr. Westcott’s employment, the only two employees who were terminated were Petitioner and a white employee, Mark Ruggieri. Excluding Petitioner, all African-American witnesses testified that Mr. Westcott treated them equally and not one, except for Petitioner, testified that they were treated differently because of their race. The testimony of Petitioner’s African-American co-workers is credited over Petitioner’s testimony of alleged discrimination. Harold Brown’s discipline was based upon the fact that he gave the College’s master keys to an outside third-party contractor. Although Mr. Brown disagreed with the level of punishment he received, in his testimony, he agreed that he had made a mistake. Mr. Brown further testified that he did not believe African-Americans were targeted. According to Mr. Brown, Mr. Westcott did not discriminate against him because of his race, and ?Westcott was an equal opportunist as far as his behavior? and ?seemed agitated towards everybody when he was in his moods.? Mr. Garcia was the lead custodian when Petitioner was terminated and is currently the College’s custodial department supervisor. While several employees told Mr. Garcia that they did not like Mr. Westcott’s management style, Mr. Garcia never heard a racist comment and testified that Mr. Westcott was strict and threatened the entire custodial and maintenance staff. Butch Whitehead believes that Mr. Westcott attempted to get him and his maintenance crew ?in trouble.? He had no personal knowledge of the manner in which Mr. Westcott treated Petitioner. Mr. Whitehead's testimony does not otherwise support a finding that Mr. Westcott was a racist or that the College discriminated against Petitioner because of his race. Tom Krampota, a Caucasian and longtime employee and former supervisor, agreed that Mr. Westcott was firm with all custodians and complained about everybody, but was not a racist. Lee Givens, an African-American, testified that his custodial work was monitored because Mr. Westcott took issue with dust and cleanliness, but that if he did his job Mr. Westcott did not bother him. Mr. Givens did not testify that he felt discriminated against because of his race, but rather stated that Mr. Westcott made the job hard for ?all the custodians.? Horace McClinton, an African-American custodian for the College, provided a credible assessment of Mr. Westcott in his testimony which summarized how Mr. Westcott treated all of his subordinates: There were certain things that he wanted us to do that we should have been doing already, and he was just there to enforce it . . . he did not think anybody was doing their job . . . . He was put there to make sure we were doing our job . . . . I don't think he was a racist. Mr. McClinton further testified that all Maintenance Division employees, including Caucasian supervisors, were afraid of Westcott because it was ?his way or the highway.? Latoya ?Red? McNair testified that he was being monitored like the other custodians but did not believe it was because of race. Just as Petitioner’s co-workers’ testimony does not support a finding that Mr. Westcott was a racist, Dan Doherty’s deposition testimony does not support a finding that Mr. Westcott’s actions against Petitioner were because of race. A review of Mr. Doherty’s deposition reflects that Mr. Doherty has no first-hand knowledge of actual discrimination. Mr. Doherty stated, ?I don't know? when asked how he knew Westcott was motivated by race. Nevertheless, according to Mr. Doherty, five African-Americans were singled out, including Petitioner, Mr. McClinton, Mr. Givens, Mr. McNair, and Mr. Brown. Two of these alleged ?victims? outright denied that Mr. Westcott treated them unfairly because of race. The others did not testify that they believed Mr. Westcott treated them differently because of race. Mr. Doherty testified that besides the five identified, the remaining African-Americans were not criticized or targeted. Mr. Doherty also conceded that it was possible that Mr. Westcott just did not like the five custodians. Further, despite the fact that Mr. Doherty was written up by Mr. Westcott more than any other employee, including Petitioner, Mr. Doherty never reported Mr. Westcott for discrimination and did not state in his exit interview from the College that Mr. Westcott was a racist or complain that race was an issue. Rather than supporting a finding that Mr. Westcott was motivated by race, Mr. Doherty’s testimony demonstrated that the problems he had with Mr. Westcott were similar with those pointed out by others—-namely, that Mr. Westcott had a prior criminal conviction, had a harsh management style, and closely scrutinized all workers. While Petitioner and Mr. Long contend that they raised the issue of discrimination with the College's management, the College's president, vice-president, director of human resources, former vice-president, and superintendent all deny receiving a report of discrimination or that any employment action was based on race or in retaliation. Mr. Long’s testimony that he complained of race is not substantiated because he did not witness any discrimination first hand. He also never documented his alleged concerns about racial discrimination prior to Petitioner's termination. In addition, in his testimony, Mr. Long admitted that he never heard Mr. Westcott use a racially discriminatory term. Likewise, Petitioner never documented alleged discrimination until after being terminated. Considering the evidence presented in this case, and the failure of Petitioner and Mr. Long to document alleged complaints when an opportunity was presented, it is found that the allegations of reported complaints of discrimination by Mr. Long and Petitioner are not credible. Further, the testimony from Petitioner’s co-workers and supervisors, which indicates that Mr. Westcott was harsh with all employees but not racially discriminatory, is credited. It is found that Petitioner did not show that any employment action by the College or Mr. Westcott against him was based on race. Rather, the evidence presented in this case demonstrates that Petitioner was not targeted or treated differently from any other employees based upon race. The evidence also failed to show that Petitioner was retaliated against because of his protected expression or conduct. In sum, the evidence did not show that Petitioner was subject to racial discrimination or wrongful retaliation, and Respondent proved that Petitioner was terminated for engaging in a pattern of unprofessional, adversarial, and insubordinate behavior, including a threat to his supervisor’s supervisor, John Westcott.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2011.
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Respondent is a residential facility for persons with various disabilities. It maintains several buildings to house its clients. On September 1, 2000, Petitioner, who is female, began her employment with Respondent. She was employed as a consumer adviser. In that position she was responsible for transporting clients to and from appointments, picking up various medications and some clerical duties as needed. Initially, she was assigned to work the 7:00 a.m. to 3:00 p.m. shift at one of the Respondent’s facilities. Sometime around August 26, 2000, Petitioner was reassigned to the night shift because, through a miscommunication, Respondent’s director believed Petitioner had cancer and was undergoing chemotherapy. The director thought the nightshift would be less stressful during this time period. However, the evidence showed that it was Petitioner’s father who had cancer and was undergoing chemotherapy. The manager’s belief that it was Petitioner who had cancer was genuine and the shift change was made in order to help Respondent. Indeed, at the time Respondent never complained that the change in shift was made to sexually harass her. Around September 10, 2002, Petitioner claimed she was sexually accosted by a co-worker, Tommy Moore. Mr. Moore worked the same shift as Petitioner and at the same building. Petitioner testified that while she was on the phone to her supervisor, Otelia Arnold, Mr. Moore entered the room and began making lewd gestures of a sexual nature to her. At one point he allegedly came up behind her and rubbed his penis against her. Petitioner reported the incident to Ms. Arnold while she was on the phone with her. Ms. Arnold did not testify at the hearing and there were no corroborating witnesses to the incident. Mr. Moore denied the acts alleged by Petitioner. Petitioner did not report the incident to the executive director and did not report the incident to the police. On the other hand, Petitioner grew very emotional during the hearing while testifying about the incident. However, the totality of the evidence was insufficient to establish that Petitioner was accosted by Mr. Moore during her phone call to her supervisor. Sometime after September 10, 2002, Petitioner began to arrive at work one to three hours ahead of her scheduled work time. Petitioner claimed at the hearing that she arrived early because she didn’t like to ride the bus at night. Co-workers complained about the disruption her early arrival caused in the care of the residents. Therefore, on October 16, 2002, the director gave Petitioner a memorandum instructing her not to arrive at work more than one-half hour before her shift. At the time of the memorandum, Petitioner did not explain her reasons for arriving early to the director. Nor did Petitioner complain to the director that she felt she was being sexually harassed. There was nothing in the record that demonstrated the director’s action was done in order to sexually harass Petitioner or to maintain a sexually hostile work environment. Indeed, the first complaint of sexual harassment of which the director was aware occurred when he received Petitioner’s Charge of Discrimination from the Alachua County EEOC office sometime after November 5, 2002. That charge alleged that Petitioner had been sexually harassed by Mr. Moore as described above. The director immediately investigated the allegation and did not find any evidence that the incident had occurred. Nevertheless, the director reassigned Mr. Moore to another facility and prohibited him from having any contact with Petitioner. The evidence did not show any adverse action was taken against the Petitioner in retaliation for filing her complaint. The evidence was unclear and disjointed regarding specific events following November 5, 2002. At some point, Petitioner telephonically contacted various employees at home while she was at work. Several of these contacts caused the employees and their families to complain to the director. Because of these complaints, Petitioner was instructed not to contact co-employees at home concerning work-related matters. On July 19, 2003, Petitioner observed a resident with scrapes and bruises on his arms. The scrapes and bruises were old self-inflicted injuries from which the resident had picked the scabs. She reported the resident’s condition to the abuse hotline maintained by the Department of Children and Family Services. Dexter Miller was the staff member responsible for the care of the resident during the prior shift. Without any authority to investigate further and in violation of the director’s earlier directive, Respondent tried to call Dexter Miller at home. She spoke with Mr. Miller’s wife and told her that the director planned to blame the abuse on Mr. Miller and that Mr. Miller was required to report to work immediately. Petitioner then contacted Mr. Miller at his other job and told him that the director was going to blame him for the abuse. None of this information was true. As a result of these phone calls and misinformation, Petitioner was terminated from employment with Respondent on July 23, 2003. The basis for Petitioner’s termination was legitimate and reasonable. Finally, there was nothing in the evidence that linked Petitioner’s termination or any directives she received from the director to any sexual abuse or sexual harassment by Respondent. Likewise, there was nothing in the evidence that Respondent permitted a sexually hostile environment to exist or persist. Therefore, due to the lack of evidence, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of October, 2004, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2004. COPIES FURNISHED: Latanya Grimes 3204 Southwest 26th Terrace, Apartment A Gainesville, Florida 32608 Herbert Webb, Esquire 4400 Northwest 23rd Avenue, Suite E Gainesville, Florida 32602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver. In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities. Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber." Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011. For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times. After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must: Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations. (Emphasis in original).3/ Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken tibia and fibula, injuries that required surgery and months of physical therapy to correct. Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter. Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking. Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/ During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/ The charge of race discrimination fares no better. Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for the accident alone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 14th day of August, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 14th day of August, 2014.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, as defined by Chapter 760, Part I, Florida Statutes, against Petitioner on the basis of his race (African- American).
Findings Of Fact White Oak Plantation is an "employer" as defined by Section 760.02(7), Florida Statutes. At all times material, Respondent was in the business of breeding, raising, selling, and showing thoroughbred horses. Petitioner is an adult African-American male. Petitioner was employed by Respondent from January 17, 1996 until March 19, 1999. Petitioner's employee evaluations showed that at all times material he met expectations or exceeded expectations. Petitioner was terminated by Billy Davis, his immediate superior, on March 19, 1999. Davis is a Caucasian male and at all times material was a Stable Manager. It is undisputed that Petitioner alleged in both his Charge of Discrimination and his Petition for Relief instances of racial harassment and the use of racially derogatory names against himself in the work place by Frank Gowen, a co-employee, and by Mike Brown, who at one point was a co-employee and who later was not an employee of Respondent. With regard to his termination, Petitioner's Charge of Discrimination alleged: 3. On March 19, 1999, Mr. Martin, Billy Farmer and myself were heading to clean the stalls. Mr. Martin called me "buckwheat" [sic]. He then grabbed a nearby hose and hosed me down, soaking my clothes with water. I stood there in shock as Mr. Martin ran out of the stable. He came back and began threatening to turn me White [sic] with lime. He threw the lime, and it landed on my shoes. I threw a bucket of water on him in self-defense, hoping he would leave me alone to do my job. Instead, he began punching and kicking me, and I protected myself. Mr. Davis then entered the stable and asked if there was horse-play [sic] going on. He then stated that everyone would be punished. When questioned later, I told Mr. Davis what happened, and he accused me of letting Mr. Martin take the fall. On March 24, 1999, I was unjustly terminated. On June 4, 2002, the Commission entered its Determination: No Cause. Petitioner timely filed a Petition for Relief, pursuant to Chapter 760, Florida Statutes, and the Rules of the Commission. His Petition alleged, with regard to his termination, as follows: 5. During my employment with respondent another incident that involved racial names being made to an African American [sic] employee by a white [sic] employee occurred. The African American [sic] employee complained to management. Both employees were terminated after the African American [sic] employee stated that he was defending himself after being called racial [sic] derogatory names by the white [sic] employee. The African American employee was rehired after EEOC intervined [sic]. I was defending myself and received serious injury to the right ankel [sic]. The ligament was torn out of place when another employee threw a 50# bag of shavings that hit me on the ankel [sic]. I suffer with a limp and serious pain from my ankel [sic] being reaggravated [sic] from the incident that occured [sic] on 03/20/99. I also suffer with anxity [sic] and depression from having been allowed to go through the comments alone when no one tried to stop it. I am seeking relief in the amount of 68000.00 [sic] for injuries sustained and for mental distress and anxity [sic]. After the case was referred to the Division of Administrative Hearings, a Notice of Hearing was issued, indicating that the disputed issues of material fact would be "as stated in the Petition for Relief." While Petitioner's testimony was vague as to dates, chronology, and relationship of some discriminatory events to other identifiable events, he testified concerning several incidents of racial harassment. Petitioner testified that sometime in 1996, a Caucasian male employee named Frank Gowen spotted another Caucasian male and an African-American male wrestling in one of Respondent's parking lots. Gowen asked aloud, in Petitioner's presence, "What does that Nigger think he's doing?" No other witness corroborated that this comment was made. Petitioner admitted that he never reported the comment to anyone in management until after he was terminated in 1999. Respondent's management employees, Billy Davis and Ronnie Rogers, Human Resources Officer, were credible in their testimony that they never knew of this incident until after Petitioner's termination. Petitioner testified that on another unspecified date, Gowen asked a Caucasian female employee, also in Petitioner's presence, what "Pontiac" meant, and then answered his own question as, "Pontiac means 'Poor Old Nigger Thinks It's A Cadillac.'" At hearing, the female employee denied this event happened. No other witness corroborated Petitioner's account of this incident. No other witness even seemed to understand the so-called joke or anagram for Pontiac. Petitioner admitted that he never reported this comment to any superior until after he was terminated in 1999. Respondent's management employees were credible that they never knew of this specific incident until after Petitioner's termination. There is sufficient evidence to corroborate Petitioner's account that in approximately January 1998, he had a knife in his hand, opening a feed sack, with the knife's point aimed at a Caucasian male employee, without any intended threat, and at that point, Gowen said to the other employee, something like, "You got to watch them Niggers. They'll cut you." Petitioner admitted that he never reported this incident to any superior until after he was terminated in 1999. Petitioner also testified credibly that on the same day as the "cutting" comment, Frank Gowen prevented him from sitting in the front of a flatbed dump truck with Gowen and another Caucasian male, Donovan Rewis, while saying something to the effect of "That's right. Let the Nigger ride in the back of the truck." Mr. Rewis corroborated that this discriminatory comment and event, in fact, occurred. On the same day as the "cutting" and "back of the truck" comments/events occurred, another male African-American employee named Clarence McClendon approached Billy Davis. McClendon told Davis that a bad situation was developing between Petitioner and Gowen. Exactly what McClendon told Davis is unclear, but it appears that Davis was at least made aware that the term "Nigger" had been repeatedly used by Gowen to Petitioner and was further made aware that the "cutting" and "back of the truck" incidents had occurred on the same day. Upon learning of the "cutting" and "back of the truck" incidents from McClendon, Davis immediately asked Petitioner to come to his office. Davis asked Petitioner to explain what had happened involving Gowen. Petitioner did not specifically describe the "wrestling" comment or the "Pontiac" comment, and it is unclear whether Petitioner described either the "cutting" or "back of the truck" incidents in the detail provided by the foregoing Findings of Fact, but Petitioner did explain to Davis that Gowen had repeatedly used the word "Nigger" in his presence and about himself. Davis then told Petitioner that Gowen's behavior was unacceptable behavior for a White Oak Plantation employee and that Gowen's comments and behavior would subject Gowen to discipline, which discipline could go as far as Gowen's termination. Petitioner then told Davis that he did not want Gowen to be punished or to get in any trouble for making the comments. Petitioner requested that Gowen simply be asked to make a sincere apology to him and to promise that he would never again make such comments. Davis specifically told Petitioner that he could inform Respondent's Human Resources Office of the incidents. Petitioner, however, requested that Human Resources not be involved and that, instead, the matter be handled by Davis. Petitioner testified that he simultaneously met with Davis and Rose Harley, an owner-manager, about the Gowen matter. It is important to Petitioner that all concerned know that Harley stated to him that the Gowen situation should have been brought to her attention sooner and that he would receive a record of the comments and management's response. Davis recalls only meeting with Petitioner alone and then meeting alone with Rose Harley to further discuss the situation. Petitioner is credible that at some point Harley made the statement to him which he related, but Davis is just as credible that Petitioner asked him not to involve the Human Resources Office. After meeting with Petitioner, Davis and Harley met with Gowen to discuss the matter with him. Davis told Gowen that he and White Oak Plantation were disappointed in his behavior. He instructed Gowen to apologize to Petitioner. Gowen, in fact, apologized to Petitioner. After the apology, Davis met with Petitioner again, and Petitioner told Davis that he was satisfied with the apology that he had received from Gowen. At this meeting, Davis instructed Petitioner to inform him if any further incidents occurred. He further told Petitioner that if Petitioner did not feel comfortable talking to him, Billy Davis, Petitioner could notify any other supervisor, which presumably would include Ms. Harley, or the Human Resources Officer, Ronnie Rogers. Although Petitioner claimed at hearing that he had told Davis by phone about Gowen's earlier comments, Davis denied that any such phone call took place, and no witness corroborated Petitioner's timeline. What is undisputed is that in 1998, no more than one day elapsed from the time McClendon notified Davis of Gowen's comments until the time the incident was resolved to Petitioner's apparent satisfaction. Davis continued to check with Petitioner, informally, in passing, on a regular basis, to ensure that Petitioner was not having any more problems with Gowen. Petitioner never indicated to Davis that any further discrimination problems existed. Mike Brown was a Caucasian male employee of Respondent who left Respondent's employ in 1999. How long he was a co- employee with Petitioner is not in evidence. While they were both employees of Respondent, Brown and Petitioner fell into a habit of addressing each other by nicknames. Brown referred to Petitioner as "Buckwheat." Petitioner referred to Brown as "Cracker," "Vidalia," "Onion Head,"1 and "Grand Wizard." Various Caucasian employees considered Petitioner and Brown to be only "cutting the fool" or "joking around" when they addressed each other this way. Other employees, including Brown's girlfriend, Missy Springer, also referred to Brown as "Vidalia." Apparently, Petitioner was always aware that the term, "Grand Wizard," inferred that Brown held that rank in the Ku Klux Klan, and Petitioner saw nothing wrong in addressing Brown that way, because Brown had asked Petitioner to call him "Grand Wizard." However, Petitioner initially did not think "Buckwheat" had any racial connotation or derogatory intent. Petitioner testified that he initially took the term "Buckwheat" to refer to the African-American character of the same name in "The Little Rascals" series of films; to be a joking nickname; and to be a harmless "stereotype."2 At some point, Petitioner contacted the National Organization for the Advancement of Colored People (NAACP) and was informed by that organization that references to the character "Buckwheat" in "The Little Rascals" series constituted disparagement of the Negro race, based on a stereotypical, uneducated, ragamuffin, Negro child who ate watermelon and behaved like a wild animal. The record does not reveal when Petitioner consulted the NAACP or whether the insult was explained to him in this way before or after Brown's leaving Respondent's employ. However, it is clear that Petitioner did not go to Davis or Rogers about the situation with Brown at any time. Once again, Petitioner's situation was reported to Davis by Clarence McClendon, after Brown left Respondent's employ. After Brown ceased to be one of Respondent's employees, Brown continued to come on Respondent's premises to provide transportation for his girlfriend, Missy Springer. During this period of time, the trading of offensive nicknames between Petitioner and Brown continued without any complaint from Petitioner to management. Over one year after the disciplining of Gowen, and after Brown was no longer Respondent's employee, McClendon reported to Davis that he had observed Brown call Petitioner "Buckwheat" and that Petitioner had called Brown "Vidalia" and "Cracker." At hearing, Petitioner claimed, without any corroborating testimony, that Davis was aware of Brown's racial disparagement of him at some time while Brown was still employed by Respondent, because Davis had been present in the break room once when Brown had telephoned, and when Petitioner answered the break room phone, Brown had addressed Petitioner, over the phone, as "Buckwheat." Petitioner testified that other employees in the break room laughed and Missy Springer told Davis that the caller had to be "Vidalia," a/k/a Mike Brown, because Brown was the only one who called Petitioner "Buckwheat." Davis categorically denied being present when any such event occurred, if it occurred. Based on the evidence as a whole, Davis is the more credible witness on this aspect of the case. Petitioner did not ever affirmatively approach Davis for redress of the nasty nickname situation with Brown. However, immediately after being informed by McClendon, Davis approached Petitioner about McClendon's allegations involving Brown. He asked if Petitioner wanted him to ban Brown from Respondent's premises. Petitioner agreed that was what he wanted done. In this discussion with Petitioner, Davis suggested that Ronnie Rogers, Human Resources Officer, be contacted regarding Brown's behavior, because Brown now was a member of the public. Petitioner agreed that Human Resources should be consulted. A meeting was held by Davis and Rogers with Petitioner. During this meeting, Rogers reviewed White Oak Plantation's Equal Employment Opportunity (EEO) statement with Petitioner. During Petitioner's employment, Respondent's EEO anti- discrimination and anti-sexual harassment statement had consistently been displayed at the time clocks of the East Stable, where Petitioner was assigned, and in the employee cafeteria, where employees daily received a free lunch. This statement prohibited racial disparagement or harassment. It set out to whom reports of such activities should be made, which included any supervisor. It stated that Respondent would not retaliate against anyone who made a good faith report of discrimination, even if that person turned out to be wrong. It did not promise confidentiality. In their meeting concerning banning Brown from the premises, Petitioner told Rogers that he was familiar with the EEO statement. Rogers agreed with Davis and Petitioner that Brown should be banned from the premises. Davis told Petitioner sometime during this period that if he experienced any repercussions as a result of Brown being barred from the property, Petitioner was to inform Davis immediately. Petitioner's testimony suggested that he now considers this statement to have been a threat by Davis or to demonstrate Davis's reluctance to ban Brown from Respondent's property, but Davis is more convincing that if he said anything close to this, it related to what Missy Springer might do or say. Rogers told Petitioner that if Petitioner experienced any future problems, whether those problems were related to Brown or not, Petitioner should immediately contact either his supervisor, Davis; another supervisor; or Rogers, himself, depending upon with whom Petitioner felt more comfortable. After meeting with Petitioner, Davis and Rogers immediately sought out Missy Springer, Brown's girlfriend whom he was transporting to and from work. They met alone with Springer and told her that Brown would no longer be allowed on Respondent's premises. They directed Springer to telephone Brown to tell him that. In the presence of Rogers and Davis, Springer telephoned Brown and instructed Brown that he was banned from coming onto White Oak Plantation property. Rogers then contacted Respondent's Head of Security and instructed him to post notices at both gates stating that Brown would no longer be allowed on White Oak Plantation property. White Oak Plantation maintains security guards on a twenty-four hour basis, seven days per week, and they were instructed not to allow Brown onto the property again. Since the date that the notices were posted and Brown was notified that he was barred from White Oak Plantation property, Brown has not returned. After the situation with Brown had been investigated and apparently resolved in late February 1999, Davis continued to check with Petitioner informally to inquire whether Petitioner was having any further problems. Petitioner was credible that he did, in fact, receive some unpleasant comments from other employees as a result of Rogers's and Davis's banning of Brown from the White Oak Plantation property. However, Petitioner did not report any such problems to Davis. Instead, he took a vacation for two weeks. After Petitioner returned to work, on March 19, 1999, Davis was shoeing a horse at the Forge, a small stabling facility about 100 yards from Respondent's East Stable. From the Forge, Davis had a direct line of sight to the East Stable. From the Forge, Davis witnessed two individuals running around and throwing water at each other. Because they were in the dark hallway of the stable, because of the distance, and because Davis was looking from lightness into darkness, Davis could not make out exactly who they were, but he could clearly see the conduct in which they were engaged. Respondent White Oak Plantation had gone out of business by the date of hearing. However, at all times material, White Oak Plantation was world renowned for its thoroughbred horse breeding program. It housed many mares valued in excess of $1,000,000.00 and foals with insurance values up to, and in excess of, $1,000,000.00. What Davis witnessed on March 19, 1999, was inconsistent with the training and instructions provided to employees working around such valuable blood stock. After contacting another employee to secure the horse in the Forge, Davis walked to the East Stable to investigate the commotion. Upon arriving at the East Stable, Davis discovered water in the hallway, disinfecting powder (lime) covering the black asphalt hallway, and a broken director's chair, normally reserved for guests, in the vicinity of a stall housing a young thoroughbred mare and her three-day-old foal. Davis approached the employees who were working at the East Stable at that time. They were Petitioner; Jason Martin, a minor Caucasian male; Clarence McClendon; and Billy Farmer, an adult Caucasian male. Davis noticed that Petitioner and Martin were both soaked with water, while McClendon and Farmer were dry. Davis asked Petitioner and Martin separately, but within earshot of each other, what had been going on, and both said they had been working. Davis then asked Farmer and McClendon, individually, what had occurred involving the water, lime, and broken chair. Both Farmer and McClendon avoided the question and responded that they did not want to get involved in the situation. Davis again asked Farmer and McClendon what had happened. Farmer and McClendon replied that they were working and that Davis should ask Martin and Petitioner what had happened. Davis asked Farmer and McClendon a third time what had occurred at the East Stable. Each of them replied that while they were working, Martin and Petitioner were horsing around. Davis then asked both Petitioner and Martin two or three times what had occurred, and each time Petitioner and Martin claimed that they had been working. Ultimately, Martin confessed that he had been involved in horse play and the commotion had been his fault. Davis immediately terminated Martin. Petitioner began to walk away from the situation, but Davis called after him something to the effect of "No, you can't let him take the fall for you. You are out of here, too." Petitioner protested that since Martin had confessed the incident was his fault, he, Petitioner, should not be terminated as well. The mare and three-day-old foal that were in the East Stable when Petitioner and Martin were horseplaying had a combined insurance value of between $750,000.00 and $800,000.00. The foal was only the mare's second or third birthing, and as a youngish mother she could be presumed to be nervous. Due to the age of the foal and the highly temperamental nature of young thoroughbred mares, the conduct in which Petitioner and Martin were engaged was very dangerous to the well-being of this mare and her three-day-old foal. It was conceivable that the mare could have been spooked and stepped on the foal, injuring it. Fortunately, that did not happen. Davis had trained all of his stable employees, including Martin and Petitioner, in the correct way to act around thoroughbred horses. Even though their horseplay was not actually in the stall with the new mother and foal, Davis considered Petitioner's and Martin's conduct with the water, lime, and broken chair to be inconsistent with the training provided. He accordingly terminated both Martin, the Caucasian boy, and Petitioner, the African-American man, because both had been involved in the event. Either orally or in paperwork, both Petitioner and Martin were terminated for engaging in horse play, for creating an unsafe work environment for themselves and their co-workers, and/or for reckless misconduct around the blood stock or thoroughbred horses. Petitioner pointed out that some or all of these reasons were not specifically listed as major offenses, subjecting an employee to termination, in Respondent's personnel manual at the time of his termination. That fact might be relevant in a case of unlawful termination pursuant to a contract of employment or collective bargaining agreement, but it is not material to the resolution of this case under Chapter 760, Florida Statutes. The manual does not purport to be exhaustive of the reasons an employee could be terminated. What is material here is that Petitioner agrees that he and Martin were terminated for the same reason or reasons, however phrased. Petitioner feels that his termination was unfair because Martin essentially took the blame for them both, but Davis's reason for terminating both employees may be summed up by the old adage, "It takes two to make a fight." On the day of his termination, Petitioner told Davis that he and Martin were fighting, and that he was defending himself, but he did not say anything to Davis about Martin making any racial comments towards him. During Mr. Davis's contemporaneous investigation of the incident in the East Stable, neither McClendon nor Farmer told him that Martin had used any racial terms while engaged in horse play with Petitioner. After Petitioner was terminated, he appealed to Respondent's Human Resources Officer, Ronnie Rogers, so Rogers conducted his own investigation of the facts surrounding Davis's terminations of Petitioner and Martin. In connection with that investigation, Rogers interviewed Farmer, McClendon, and Petitioner. McClendon told Rogers that on the day of Petitioner's and Martin's terminations, he witnessed Petitioner and Martin running, playing, and throwing water on each other. McClendon further stated that he saw either Martin or Petitioner push the other individual into the director's chair, breaking it. Farmer told Rogers that on the day of Petitioner's and Martin's terminations, he had witnessed Petitioner and Martin running around and playing for 10 to 15 minutes. Rogers concluded that Davis had made a proper decision in terminating both Martin and Petitioner. The Monday following Petitioner's termination, Petitioner telephoned Rogers to inquire whether he was still terminated. During the course of this conversation, Petitioner admitted to Rogers that he and Martin were horse playing in the stables where the thoroughbred horses were housed. During this conversation, Petitioner did not say anything to Rogers about Martin or any other individual using any racial or inappropriate language on the date of Petitioner's termination. Rogers and Davis met with Petitioner on March 24, 1999, five days after Petitioner was terminated. During this meeting, Petitioner reiterated what he had told Rogers, that he and Martin were playing around in the East Stable on the day of their terminations, but he also brought up the previous racial incidents involving Gowen and Brown and inquired whether Rogers was aware of them. Rogers had not been aware of the incidents involving Gowen and asked Petitioner if he were satisfied with the way that all the previous incidents involving both Gowen and Brown had been handled. Petitioner indicated that he was satisfied with the manner in which the incidents involving Gowen and Brown had been handled. Petitioner claimed at hearing that in the March 24, 1999, meeting, he related to Davis and Rogers that the March 19, 1999, altercation with Martin had been self-defense because he had been attacked by Martin and/or provoked by Martin's racist comments. Both Davis and Rogers credibly deny that Petitioner told them anything about racial comments by Martin. They also credibly deny that Farmer or McClendon reported any racial comments. They are less clear that Petitioner said nothing about self-defense or about Petitioner having to fight Martin, and I accept Petitioner's testimony only to the extent that he did claim both horseplay and self-defense as of March 24, 1999. Neither Davis nor Rogers independently observed or was aware of any racially inappropriate conduct or comments. At hearing, Petitioner testified that on March 19, 1999, the date of termination, Martin had called Petitioner "Buckwheat." Petitioner related that Martin had then stated that if Mike Brown were permitted to call Petitioner "Buckwheat," then he, Martin, should be allowed to call Petitioner "Buckwheat," too, and that Petitioner told Martin that he could not because Petitioner now knew it to be racist language. Petitioner related that Martin then hosed Petitioner down, soaking Petitioner's clothes with water. Petitioner said he let this event pass, because it was hot. He then filled a pail of water and spilled some. He poured the remainder of the water in his pail into a wash stall. Martin ran away from Petitioner, thinking Petitioner was going to throw water on him, and said something to the effect of "Since you think you White and you want to be White, I'm going to take this lime and throw it on you and turn you White." Petitioner related that Martin was referring to the lime used to disinfect the stalls. However, Petitioner did not testify that Martin picked up any lime. Rather, Petitioner testified that Petitioner picked up a bucket of water and threw it on Martin. Petitioner related that Martin reacted to being doused by Petitioner by getting Petitioner in a headlock and punching and kicking him. A fight ensued, in close vicinity to the young mare and her three-day- old foal, but not within their stall. Petitioner testified that the director's chair was broken when Petitioner threw Martin into it. The area was also flooded with water.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 11th day of December, 2002.
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
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 Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Republic Parking System, Inc., operates paid parking lots and facilities at a variety of public and private locations. One of its locations is at the Northwest Florida Beaches International Airport in Panama City, Florida. As part of its operations, Republic maintains an equal- employment opportunity, anti-sexual harassment and non- discrimination policy. The policy also prohibits harassment at work by anyone, including supervisors, co-workers or customers. The evidence showed that the policy is disseminated to its employees in its Employee Handbook and is consistently enforced by the company. Under its Employee Handbook the company generally follows a progressive-disciplinary policy for violations of company policy, with increasing penalties ranging from reprimands to dismissal. However, certain violations of policy, such as use of abusive language or being discourteous to customers, supervisors or fellow employees, may result in immediate dismissal. In October of 2010, Petitioner, Joni Barkley, an African-American, was employed by Respondent as a parking booth cashier at the international airport in Panama City. Upon employment, Ms. Barkley received a copy of Republic Parking System, Inc.’s Employee Handbook and signed an acknowledgement of her receipt of that handbook. She was aware of the company’s policy regarding discrimination and harassment. During her tenure and prior to the end of December 2013 or early 2014, Ms. Barkley had no complaints of racial discrimination or harassment towards her. On the other hand, she had been verbally counseled about a remark she made that co- employees had interpreted as racially motivated. Respondent also had been disciplined for repeated tardiness. Additionally, during her employment, Ms. Barkley was known for misinterpreting statements of others and believing innocent statements or actions by others were directed at her. Towards the end of December 2013 or early January of 2014, one of Ms. Barkley’s co-workers, Eva Bishop, a Caucasian, showed her co-workers, including Ms. Barkley, several photographs and a video of her trip to Alaska. Among the photos she showed to everyone was a picture of a Ketchikan Native American clan house. The picture depicts a rustic blue wooden structure with several Alaskan Native American symbols painted on it to form a face with an open mouth for the front entry. Three large Native American totem poles dominate the front of the structure and are placed at the front corners and in the middle over the front entry way to the structure. When Ms. Barkley was informed that the photo was of a clan house, she mistakenly believed that the photo was related to the Ku Klux Klan and thought Ms. Bishop was referring to a “Klan” house. Unfortunately, Ms. Barkley maintained the correctness of her mistaken belief even though several co- workers who had seen the same picture tried to explain the picture to her. Through January of 2014, Ms. Barkley and Ms. Bishop had several arguments and animated discussions. Ms. Barkley insisted that Ms. Bishop was a member of the Ku Klux Klan and accused her of the same, with her rank in the Klan growing from member to president of the local chapter. She also insisted that the picture Ms. Bishop had shown Petitioner was related to the Ku Klux Klan. Due to her mistaken beliefs, Ms. Barkley became very anxious and fearful of Ms. Bishop. On February 5, 2014, Ms. Barkley first reluctantly complained about Ms. Bishop to Kim Hall, Republic’s Assistant Manager and Ms. Barkley’s immediate supervisor. She complained that Ms. Bishop had used racial slurs in talking with her and had discussed with her the Ku Klux Klan. Ms. Hall immediately took Ms. Barkley to Kelly Blum, Republic’s General Manager at the Panama City airport. Ms. Barkley made the same complaint, but indicated that she “loved” Ms. Bishop and did not want to see her fired. Shortly thereafter, Ms. Blum met with Ms. Barkley and Ms. Bishop together, and told them that they could not fight with each other at work. At the conclusion of the meeting, Ms. Barkley and Ms. Bishop hugged, apologized to each other, said they loved each other and told Ms. Blum they could work together. There was no evidence that demonstrated the manner in which Ms. Blum investigated or handled Ms. Barkley’s complaint was intimidating, harassing or discriminatory. Ms. Blum also stated that she would try to avoid scheduling Ms. Barkley and Ms. Bishop on the same shift. However, due to limitations in personnel, Ms. Blum could not ensure that the two employees would not be on the same shift. Unfortunately, sometime after this conversation, Ms. Barkley worked two hours with Ms. Bishop because Ms. Bishop’s replacement for the next shift was late or couldn’t make it in to work due to bad weather. The manager that day offered to stay with Ms. Barkley, but Ms. Barkley said it would be alright and that she could work with Ms. Bishop present. The evidence did not demonstrate that the one-time, unanticipated shift overlap was in retaliation for Ms. Barkley’s earlier complaint. Over the next several days and notwithstanding their mutual apologies, Ms. Barkley and Ms. Bishop continued to argue with each other, create a hostile work environment and use abusive, profane language. Eventually, Ms. Barkley called the F.B.I. and continued to accuse Ms. Bishop of being a racist and a member of the Ku Klux Klan. At some point, Ms. Barkley insisted on showing Ms. Bishop some books about the Ku Klux Klan, again accused Ms. Bishop of being a member of the Ku Klux Klan, and indicated that Ms. Bishop’s connection to the Klan scared her. Ms. Bishop told Ms. Barkley, in essence, that the KKK hung niggers, and asked why Ms. Barkley thought she would take a similar action. Ms. Barkley responded and, in essence, referred to Ms. Bishop as a white cracker bitch who would hang niggers from trees and that she better hang her with her pearls on. As a consequence, Ms. Blum looked into the continued behavior and reported her concerns about Ms. Barkley’s and Ms. Bishop’s behavior to her supervisor, Regional Manager Linda Kelleher. Ms. Kelleher requested that Republic’s human resources department investigate the matter. Again, there was no evidence that demonstrated this inquiry was intimidating, harassing or discriminatory towards Ms. Barkley. Jan Veal, Republic Parking System, Inc.’s Director of Human Resources, interviewed all witnesses, including Ms. Barkley, Ms. Bishop, Ms. Williams, Ms. Hall, Ms. Blum, and Ms. Kelleher. During the investigation, Ms. Bishop admitted using racial epithets towards Ms. Barkley. Based upon Ms. Bishop’s admission, Ms. Bishop was suspended, with pay, pending the conclusion of the investigation. Shortly thereafter, following Ms. Veal’s interview with Ms. Barkley and the other witnesses’ report of the racial remarks of Ms. Barkley, Ms. Barkley also was suspended with pay, pending the conclusion of the investigation. Such actions were reasonable since both Ms. Bishop and Petitioner were at fault in their behavior towards each other. On February 25, 2014, Republic Parking Systems, Inc., terminated Ms. Barkley’s employment, having concluded that she used offensive and threatening language of a racial nature including the use of profanities and creation of a hostile work environment in violation of company policies. Republic Parking System, Inc., terminated Ms. Bishop’s employment on the same day for the same reasons. As such, the evidence was clear that both employees engaged in similar behavior and were disciplined in the same manner. Both were terminated. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on race or retaliation when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of August, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2015. COPIES FURNISHED: Joni Marie Barkley 15221 Banks Drive Southport, Florida 32409 (eServed) Jan Veal Republic Parking System, Inc. Suite 2000 633 Chestnut Street Chattanooga, Tennessee 37450 James Scott McDearman, Esquire Grant Konvalinka and Harrison, P.C. 633 Chestnut Street Chattanooga, Tennessee 37450 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
