The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner, Linda Cattanach, was subject to an unlawful employment practice by Respondent, Florida Department of Elder Affairs, based on her sex or in retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes (2013).2/
Findings Of Fact Petitioner, Linda Cattanach, was at all times relevant hereto an employee of the Florida Department of Elder Affairs. Respondent, Florida Department of Elder Affairs (Respondent or Department), is the state agency responsible for administering human services programs for the elderly and for developing policy recommendations for long-term care. See § 430.03, Fla. Stat. (2015). Respondent operates a Comprehensive Assessment and Review for Long-Term Care (CARES) program to assess individuals for Medicaid long-term care services, whether in a nursing facility, in a private home, or in another community setting. The CARES program operates 19 offices statewide and one central office in Tallahassee. Medical assessments are conducted by CARES Assessors (CAs), and Senior CAs. CAs and Senior CAs are supervised by a Program Operations Administrator (POA) in each office, who reports to a Regional Program Supervisor (RPS). The RPS reports to the Deputy Bureau Chief in Tallahassee, who reports to the Bureau Chief; who, in turn, reports to the Division Director for Statewide and Community- Based Services. In January 2013, Petitioner began employment as a CA in Respondent’s Gainesville office. Petitioner began in a one-year probationary employment status. The record did not clearly establish how many individuals were employed in the Gainesville office with Petitioner. There was an office assistant, Rose Gonzalez; at least four other CAs, including Justin Keels; a registered nurse; and their supervisor, POA Sam Rutledge. Freadda Zeigler was the RPS for the region, which included the Gainesville, Tallahassee, Pensacola, Jacksonville, and Daytona Beach offices. Ms. Zeigler commuted from her home in Broward County. In Tallahassee, Jay Hudson was the Deputy Bureau Chief, Paula James was the Bureau Chief, Carol Carr was the Deputy Division Director, and Marcy Hajdukiewicz was the Division Director. The Gainesville territory covered from Marion County north to the Florida/Georgia line, west to the Leon County line, and east to the Duval County line. CAs were assigned to particular locations within the office’s jurisdiction. CAs traveled to both health care facilities (e.g., nursing homes, assisted living facilities) and private homes to meet with and personally evaluate the needs of the client. Petitioner was primarily assigned to cover facilities in Jasper, Live Oak, Dowling Park, Mayo, and Lake City. Petitioner was in the field conducting evaluations two to three times per week. Her assignments required some long commutes, up to one and one-half hours to Jasper (just south of the Georgia line) and over an hour to Dowling Park and Live Oak. In February 2013, a senior CA position became open in Gainesville. Both Petitioner and Mr. Keels applied and were interviewed for the position. Mr. Keels was selected for the position in March. As senior CA, Mr. Keels did not supervise other CAs in the Gainesville office, but was “put in charge” when Mr. Rutledge was out of the office. When Petitioner began her employment in Gainesville, she was told that a desk was being ordered for her. She was given a folding table to use in her workspace. Petitioner’s workspace was in an open area of the office. Other employees would pass through and occasionally gather in her workspace on breaks or on their way to lunch. Petitioner testified that Mr. Rutledge often came into the open area to interact with other employees around lunchtime to see if anyone wanted to “get food.” Sexual Harassment Claim4/ One day in late March 2013, Mr. Rutledge and Mr. Keels were in Petitioner’s workspace and began discussing a restaurant with the word “cooter” in its name. During this conversation, the two men stood on opposite sides of Petitioner’s worktable, where Petitioner was seated. One of the men asked Petitioner if she knew what the word “cooter” meant, and she responded that she did not. One of the men stated that it meant “vagina.” Petitioner testified that she was embarrassed, uncomfortable, and felt trapped at her worktable where the men stood on either side of her. Petitioner did not report this incident to anyone at first. Petitioner testified that she was afraid that if she said anything, she would be fired. Petitioner’s ambivalence was due in no small part to the fact that Mr. Rutledge was her supervisor. Petitioner described another incident that occurred shortly before the “cooter” incident. Mr. Rutledge called Petitioner into his office and asked her to look at a picture on his computer screen. The picture was of a woman in a bikini. Mr. Rutledge said something to the effect of “that is what my ex-wife used to look like.” Petitioner was embarrassed and left Mr. Rutledge’s office. Respondent maintains a sexual harassment policy of which Petitioner was aware. The policy provides, in part, that “[a]ny employee who believes that he or she is the victim of sexual harassment . . . may make an oral or written complaint to the General Counsel or Director of Internal & External Affairs within 365 days of the alleged discriminatory action.” In April 2013, approximately a week after the “cooter” incident, Respondent’s Inspector General Taroub King began an investigation of Mr. Rutledge, prompted by an anonymous complaint. Among the allegations investigated were that Mr. Rutledge borrowed money from employees, encouraged employees to participate in an investment scheme (or schemes), and utilized employees to witness signatures and notarize documents of a personal nature. The complaint described Mr. Rutledge as maintaining no management structure, lacking basic documentation, and essentially performing no work of any kind. Petitioner was interviewed in connection with the investigation by Ms. King and another investigator from the Inspector General’s office on April 4, 2013. Petitioner was placed under oath and her interview was audio-recorded. Petitioner was questioned about the allegations in the complaint against Mr. Rutledge, and she fully cooperated with the investigators. At the end of the interview, Ms. King asked Petitioner if she had any other information to relay. At that point, Petitioner reported that inappropriate comments and banter of a sexual nature occurred in the office. Petitioner did not report any other details. Ms. King asked Petitioner for particular examples. In response, Petitioner shared the “cooter” incident and the “bikini” incident. All of the employees in the Gainesville office were interviewed by Ms. King. Mr. Keels was interviewed after Petitioner and was questioned about the “cooter” incident and office banter of a sexual nature. At the final hearing, Petitioner maintained that there was both frequent sexual banter and inappropriate conversations in the Gainesville office. She testified that the staff nurse once referred to a patient as having “balls the size of a bull.” She also reported that Mr. Rutledge made hand gestures indicating that Ms. Gonzalez was large-breasted. Petitioner did not share these details with Ms. King during her interview. As with the “bikini” incident, Petitioner was able to walk away from, or otherwise ignore, the comments and gestures of a sexual nature in the workplace. Upon her return to Tallahassee, Ms. King reported her investigative findings to members of Respondent’s Human Resources Department, the Deputy Secretary, and the Director of Internal and External Affairs. Petitioner testified that she sent Ms. King an email sometime after her interview asking whether more information was needed from Petitioner regarding her complaints of inappropriate sexual comments in the workplace. Ms. King denied that Petitioner sent any follow-up email of that nature. Ms. King did recall an email from Petitioner requesting public records. Respondent terminated Mr. Rutledge on April 8, 2013, four days after Petitioner was interviewed by Ms. King. The decision to terminate Mr. Rutledge was made by management in the Tallahassee office. Both Mr. Hudson, the Deputy Bureau Chief, and Ms. James, the Bureau Chief, traveled from Tallahassee to Gainesville to terminate Mr. Rutledge. Ms. Zeigler was likewise present at the Gainesville office for the termination of Mr. Rutledge. However, Ms. Zeigler claimed not to have been informed ahead of time about the termination. She said the appearance of Mr. Hudson and Ms. James at the Gainesville office on April 8, 2013, was a surprise to her. In early May 2013, a significant remodel of the Gainesville office was initiated. The remodel created confusion in the Gainesville office, with furniture being moved around, office files and equipment being boxed up, and the general mess associated with construction in the workplace. At some point, Petitioner lost track of an entire box of her files and later found them on the floor under a pile of chairs she assumed the painters had moved.5/ Alleged Acts of Retaliation Respondent named Mr. Keels as Acting POA, effective April 8, 2013. Ms. James testified, credibly, that Mr. Keels was named Acting POA because he was the senior CA in the office. Mr. Keels was questioned about the “cooter” incident during his interview by the Inspector General. Thus, there is sufficient evidence from which the undersigned can infer that Mr. Keels was aware Petitioner had reported the “cooter” incident to the Inspector General during the investigation of Mr. Rutledge. Petitioner complained that she was ostracized by other employees in Gainesville after Mr. Rutledge was terminated. Petitioner also complained that Mr. Keels treated her unfairly in his capacity as acting POA. First, Petitioner maintained that Mr. Keels increased her caseload, from about 27 to about 44 cases, which made her job very difficult given the lengthy commutes to her assigned facilities. Petitioner introduced no evidence, other than her testimony, that her caseload substantially increased after Mr. Keels became acting POA. Petitioner complained to the Inspector General on April 4, 2013, that her caseload under Mr. Rutledge’s supervision was inordinately heavy. Petitioner also shared with the Inspector General that Mr. Keels, in his capacity as senior CA, was unfair in case distribution. Further, Petitioner testified that although her caseload was heavy in early May, it later declined. The evidence does not support a finding that Mr. Keels assigned Petitioner an inordinately heavy caseload following her complaints to the Inspector General and Mr. Keels’ temporary promotion to acting POA. Sometime after Mr. Keels became acting POA, he took away Petitioner’s worktable. According to Petitioner, Mr. Keels said he took the table for use in the conference room for “staffings,” a term that was not explained by any witness. Petitioner testified there were other tables available in the meeting room which could have been used for that purpose. For the next two months, Petitioner completed her in- office work at a window ledge. She placed her laptop and files on the ledge and utilized extra chairs for additional workspace. In June 2013, Petitioner was presented with a new desk. Petitioner’s Termination During Mr. Rutledge’s tenure as POA, the Bureau had rolled out significant changes to the CARES program. Those changes had not been implemented by Mr. Rutledge, much less communicated to the Gainesville staff. After Mr. Rutledge’s termination, CARES management began monitoring the Gainesville office very closely. During the next few months, Ms. Zeigler was more frequently present in the Gainesville office and was in almost constant contact with Mr. Hudson regarding the activities of the Gainesville office. However, Ms. Zeigler was unaware of any discussions Mr. Hudson may have had with the Bureau Chief or the Division Director. Shortly after Mr. Rutledge’s departure, Ms. Zeigler met with the Gainesville staff to explain new procedures. Among the procedures was a requirement to include on employees’ GroupWise calendars, an entry of every planned field visit. The CAs’ GroupWise calendars were accessible not only to their immediate supervising POA, but also to the RPS and higher-level managers. The calendar was an important management tool used by Respondent both to perform quality assurance checks and to monitor employee performance. On May 9, 2013, Ms. Zeigler sent the following email to the CAs in Gainesville: Good afternoon all, As mentioned in the past meeting in your office, it was requested that I be given access to your GroupWise calendars to help monitor accountability for field visits with Specialization. I would like to thank each of you for adhering to the request, and would like to ask each of you to add the following information to your calendars: First and Last name of client visiting Facility name where client will be visited Home address if visiting client in the home Purpose of visit Time of visit (include estimated travel time) * * * This information is needed for accountability purposes, and also used to check that assessments are being entered in CIRTS, per the attached CARES policy #PPH Update No2011_2, that is still currently in place. Effective immediately, I would like for each worker to add this information to their calendars prior to making a visit. You should also add any approved leave time that you will be taking as well. If your visit schedule changes, it needs to be noted on the calendar with the appropriate change. Please revisit this memo for a thorough understanding. On May 14, 2013, Ms. Zeigler sent an email to Petitioner informing Petitioner that information on her calendar was incorrect. On May 31, 2013, Ms. Zeigler issued a formal counseling memorandum to Petitioner for failure to list her client visits on her GroupWise calendar as directed. The following excerpt is especially relevant: You were instructed to submit your plans for field visits [sic] travel at least one day in advance of the actual travel. A review of your calendar clearly showed that you either did not put any information on your calendar as required and/or you entered incorrect data, for the following dates: April 16, 2013, May 6, 2013, May 7, 2013, May 9, 2013, May 10, 2013, and again on May 14, 2013. At the final hearing, Petitioner did not deny that she failed to enter required information on her calendar. Instead, Petitioner offered a series of excuses, including system connectivity issues, her travel schedule, and confusion regarding a transition from GroupWise to the Outlook calendar system. With regard to connectivity, Petitioner explained that there were problems connecting to the Department’s computer system from remote locations and, occasionally, in the Gainesville office. Petitioner likewise testified that she would not return home until 6:00 p.m. or later on days she traveled to Jasper and other remote field locations. Petitioner complained that connectivity issues prevented her access to GroupWise from home, and thus, was unable to enter the visits scheduled for the following day. Petitioner testified that she complained to the information technology department in Tallahassee about connectivity issues and diligently tried to address these concerns. Petitioner introduced in evidence an email exchange between herself and Ms. Zeigler in which she complained about, and Ms. Zeigler resolved, an issue with Petitioner’s access to CIRTS – the Department’s online case input system. The email string is dated July 17, 2013, well after the date of Petitioner’s documented missing calendar entries. Further, the email relates to access to the case input system and is irrelevant to Petitioner’s claim of issues with connectivity to the computer system in general. Finally, Petitioner explained that the Department changed from GroupWise to the Outlook system, and she was confused about whether to continue adding entries on her GroupWise calendar during that transition. In the May 31, 2013, counseling memorandum, Ms. Zeigler referred to the program’s transition from the GroupWise to the Outlook calendaring system, as follows: The Microsoft Outlook Email and Calendar program was installed on all computers in DOEA, migrating existing GroupWise information to the new Outlook program on May 28, 2013. Instruction videos and online documentation were made available to all DOEA employees to learn how to utilize the new program. You were instructed to give proxy access to the RPS via email from the acting Supervisor. It is evident that you were successful in accessing the Outlook Calendar, as you sent the RPS a request to share your calendar on May 30, 2013. On the same date, you left the office to go to the field at 12:55 p.m., and failed to update/place any information on your calendar before departing. The sign in sheet indicated that you were going to a nursing facility. This repeated failure to comply with procedures is unacceptable. As a result of this failure, your supervisor was unaware of what facility and/or client you were seeing and how long it would take time wise for the field visit. You effectively prohibited your supervisor from knowing your whereabouts and/or the client(s) to be seen. In light of the facts, Petitioner’s alleged confusion about whether to continue adding information to her GroupWise calendar is not credible. Petitioner did not send an Outlook calendar-sharing invite to Ms. Zeigler until May 30, 2013, well after her missing GroupWise calendar entries of April 16 and May 6, 7, 9, 10, and 14, 2013. Further, Petitioner failed to calendar her appointments the same day she sent Ms. Zeigler the calendar- sharing invitation, thus belying any excuse that she had connectivity issues, at least on that particular date. In an effort to minimize the significance of her failure to document her field visits on her calendar, Petitioner testified that she noted her field visits on a daily sign-in log physically maintained in the Gainesville office. Petitioner introduced a composite exhibit purporting to be copies of the daily sign-in logs from April, May, June, and July 2013. Even if the exhibit was reliable evidence of Petitioner’s whereabouts, the logs are irrelevant to the issue of whether Petitioner complied with the electronic calendaring requirement. No evidence was introduced to support a finding that the daily sign-in log was an acceptable alternative to Ms. Zeigler’s specific, clear, and repeated direction to all Gainesville employees to use their GroupWise, and later Outlook, calendars to note their planned field visits with required details. The evidence conflicted as to whether Ms. Zeigler’s May 31, 2013, counseling memorandum constituted discipline. Petitioner testified that the memorandum was a training tool. Ms. Zeigler testified alternately, and with hesitancy, that the memorandum was “almost like a verbal warning type of thing,” and “unofficially formal.” On cross-examination, Ms. Zeigler testified, “I don’t think that that would be a reason to fire somebody after one counseling memo. I mean that would be absurd.” Ms. James testified that the memorandum constituted a first-step disciplinary action. Ms. James explained that a counseling memorandum is preceded by a verbal warning from the supervisor. The Department’s disciplinary policy was not introduced in evidence. In light of Petitioner’s probationary employment status, the issue of whether the counseling memorandum constituted discipline is largely irrelevant. The counseling memorandum is evidence of poor job performance during Petitioner’s probationary employment period. At some point after Mr. Rutledge’s termination, the Department advertised for the open POA position. Both Petitioner and Mr. Keels applied for the position. Mr. Hudson and Ms. Zeigler conducted interviews for the position. Petitioner was not responsive to Ms. Zeigler’s efforts to schedule Petitioner’s interview for the position. Eventually, Ms. Zeigler did interview Petitioner for the position. Ms. Zeigler also interviewed Mr. Keels. In June 2013, Ms. Zeigler prepared performance evaluations of the Gainesville staff. Ms. Zeigler had little knowledge of staff performance prior to Mr. Rutledge’s termination, as Ms. Zeigler was new to the region. Ms. Zeigler gave all the Gainesville employees ratings of “3,” satisfactory performance, across the board. In late July 2013, Ms. Carr and Ms. Hajdukiewicz from the Tallahassee office came to the Gainesville office and personally terminated Mr. Keels. Ms. James did not directly make the decision to terminate Mr. Keels, but she agreed with the decision. Ms. James stated that Mr. Keels was terminated based on his actions after he became acting POA in Gainesville. Ms. James did not elaborate and neither counsel asked any follow-up question. On July 31, 2013, Ms. Carr and Ms. James came to the Gainesville office from Tallahassee, met with Petitioner, and offered her a choice of resignation or termination. Petitioner chose termination. That same day, after leaving the office, Petitioner called the Department of Human Resources and requested to change her termination to resignation. The request was granted. Petitioner did not ask why she was being terminated or asked to resign. Petitioner testified that neither Ms. Carr nor Ms. James gave her a reason. Ms. Zeigler resigned from the Department in October 2013. The circumstances of Ms. Zeigler’s resignation were not introduced in evidence. In that regard, Ms. Zeigler testified as follows: I had a lot of questions with the State that probably should not come up here, but there are a lot of questionable things that were going on with the State at the time which led to my resignation. So I did not question it. I did not question [Petitioner’s] termination based off of my ability to run the office, because I almost felt like it was being run above me.[6/] Ms. Zeigler’s testimony was introduced in support of Petitioner’s claims. However, Ms. Zeigler had difficulty recalling events, including the timing of relevant events. Of note, Ms. Zeigler testified that she was the RPS for Gainesville about a year, meaning she would have begun in the position in October 2012. Later, she testified that Mr. Rutledge was terminated “not long after I was there [as RPS].” Her testimony was hesitant, hedging, and sometimes conflicting. Ms. Zeigler testified that she was in daily contact with Mr. Hudson about issues in the Gainesville office after Mr. Rutledge was terminated, but claimed to have had no advance notice of either Mr. Keels’ or Petitioner’s termination. As such, the undersigned finds Ms. Zeigler’s testimony to be both unreliable and unpersuasive. Ms. Zeigler’s counseling memorandum to Petitioner regarding calendaring is credible evidence of Petitioner’s job performance which cannot be discounted by Ms. Zeigler’s after-the-fact, and apparently biased, testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Florida Department of Elder Affairs, did commit an unlawful employment practice as to Petitioner, Linda Cattanach, and prohibiting the practice. However, under the specific facts of the case, the undersigned recommends no affirmative relief from the effects of the practice. DONE AND ENTERED this 5th day of October 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2015.
The Issue The issue is whether Respondent discriminated against Petitioner based on her sex and/or in retaliation for complaining about sexual harassment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent's business provides consulting and technical-services management on a contract basis. Specifically, the business involves performing environmental consulting, engineering, remediation/construction, and information technology services to both private and public entities throughout the country. Petitioner began working for Respondent in February 1998 as a receptionist and administrative assistant in Respondent's Jacksonville, Florida, office. Her duties included answering the phones, processing mail, filing, creating, and revising reports. Petitioner's job description also included providing administrative support to the engineers, scientists, project managers, and geologists in the office. Initially, Petitioner worked under the direction of Sam Patterson, Respondent's division director. After Mr. Patterson resigned, Sam Pratt became Respondent's manager and Petitioner's supervisor in the Jacksonville office. On or about March 24, 1998, Respondent evaluated Petitioner's work performance. The evaluation indicates that Petitioner was outstanding in the following expected behavior and performance areas: (a) knowledge; (b) initiative/problem solving; and (c) relations with others. Petitioner received an excellent rating in all other performance areas, including the following: (a) communication/marketing ability; (b) quality of work; (c) dependability; and (d) adaptability/professional development. Respondent paid for Petitioner to attend computer courses. Petitioner completed the following courses on the following dates: (a) April 29, 1998, Beginning Power Point; (b) September 19, 1998, Beginning Excel; (c) January 7, 1999, Beginning Word; (d) March 25, 1999, Intermediate Excel; (e) April 9, 1999, Intermediate Word 97; and (f) April 27, 1999, Advanced Excel. Mr. Pratt evaluated Petitioner's job performance on March 11, 1999. He found that Petitioner met the expected behavior and performance requirements in all areas. Mr. Pratt listed her strengths as follows: (a) has good relationship with clients; (b) works long hours to meet deadlines; (c) has excellent knowledge of company resources and corporate information; and (d) has detailed filing system that allows for tracking data. Mr. Pratt listed her weaknesses as follows: (a) has failed to contact office when unavailable to work due to family illness; (b) lacks computer skills necessary for a project assistant; (c) fails to perform a complete review of her own work; and (d) takes constructive criticism too personally. There were no areas in which Petitioner failed or exceeded her job requirements. In July 1999, Gregg Roof became Respondent's manager and Petitioner's supervisor in the Jacksonville office. Mr. Roof experienced problems with Petitioner's job performance, finding that she had difficulty completing simple tasks, such as copying, without making errors. Merve Dale was a geologist who worked for Respondent. Mr. Dale worked part-time in the field and part-time in Respondent's Jacksonville office. Petitioner found Mr. Dale's behavior offensive on several occasions. In June 1999, Mr. Dale told Petitioner that he could not smell the toxic odor in the warehouse but he could smell her perfume, which made him want to jump her. Petitioner ignored Mr. Dale and did not immediately report this statement to Mr. Roof. Mr. Dale sent Petitioner an e-mail from his home on August 19, 1999. The message stated, "I have sent myself a test message and I thought of you, so here is another test to see if my e-mail works from home. Have a wonderful day." Petitioner responded electronically that she had received the message. Petitioner then called Richard May, Respondent's senior regional manager in the Tallahassee, Florida, office. Petitioner told Mr. May that she was not happy about the content of the e-mail message or the fact that it was sent from Mr. Dale's home at 6:00 a.m. She also informed Mr. May about Mr. Dale's prior comment about smelling her perfume. However, Petitioner did not want Mr. May to take any action against Mr. Dale. She specifically stated that she did not want to file a formal complaint pursuant to Respondent's anti-discrimination or anti-harassment policy. She wanted to deal with the situation herself. Later that same day, Mr. Dale called the office from the field to ask Petitioner to have lunch with him. Petitioner declined the offer, stating that she usually worked through the lunch hour. Petitioner did not report this incident to Mr. Roof or Mr. May immediately. In the afternoon, Mr. Dale asked Petitioner what he was going to get in return for giving her charge numbers for her timecard. Petitioner responded that the question was what he would not get, which was a hard time. When Mr. Dale indicated that it was not a fair exchange, Petitioner replied, "That's the way it is." Mr. Dale then gave Petitioner the information she needed for her timecard. Petitioner did not immediately report this incident to Mr. Roof or Mr. May. On August 20, 1999, Mr. Dale was with Petitioner when another geologist asked her if she was wearing a new outfit because she really looked sharp. Petitioner laughed and responded negatively, stating that she was finally losing weight and able to wear some old clothes. At that point, Mr. Dale stated, "I told her she was really looking hot and she better watch out." Mr. Dale then reached out with a roll of drawings, five feet in length, and slapped Petitioner on her backside. Petitioner immediately told Mr. Dale to behave himself. In a letter to Mr. Dale dated August 24, 1999, Petitioner recounted the above-referenced incidents and demanded an apology. The letter specifically informed Mr. Dale that his actions were unwanted and offensive. Petitioner furnished Mr. Roof with a copy of the letter. Mr. Roof and Petitioner also shared her concerns with Mr. May. Mr. Roof subsequently counseled with Mr. Dale and Petitioner. During the meeting with Mr. Roof on August 25, 2000, Petitioner rejected Mr. Dale's apology. Mr. Roof then proceeded to admonish Mr. Dale, warning him that his behavior towards Petitioner was inappropriate. Petitioner did not request Mr. Roof or Mr. May to take any further action against Mr. Dale even though she knew she could have filed a formal complaint pursuant to Respondent's policies and procedures. On February 18, 2000, Petitioner happened to be alone in the office with Mr. Dale. She was helping him label samples for shipment to a laboratory when Mr. Dale handed Petitioner a doctor's business card. Mr. Dale stated that he found the card on the sidewalk in front of the office entrance and wondered if it might belong to Petitioner. Other than giving Petitioner the business card, Mr. Dale did not say or do anything to Petitioner. Petitioner concedes that it was customary for staff to give found items to her as the office receptionist. However, the business card made Petitioner feel uncomfortable because it listed the name of a gynecologist who specialized in reproductive endocrinology, infertility, pelvic reconstructive surgery, and gynecology. Petitioner kept the business card and faxed a copy of it to Mr. May in Tallahassee. When she called Mr. May, he said he would talk to Mr. Dale. Mr. May was extremely supportive of Petitioner and took her complaints regarding the card seriously. Petitioner requested Mr. May to report the incident to Faye Thompson, Respondent's director of Human Resources. This was the first time that Petitioner had made such a request. During the telephone conversation, Mr. May asked Petitioner if she wanted to transfer to the Tallahassee office so that he could protect her. Mr. May and Petitioner had previously discussed such a transfer because some of her duties were regional in nature. Petitioner responded that she would think about it. In an e-mail dated February 22, 2000, Mr. May asked Petitioner to plan a luncheon for Ms. Thompson and other employees who would attend a project manager's seminar at the Jacksonville office. Petitioner responded that she would be happy to prepare the meal and other refreshments for the seminar. On February 23, 2000, in anticipation of the seminar, Petitioner asked Mr. Roof if he was going to have the warehouse cleaned over the weekend. He responded negatively because the staff had already worked long hours. Petitioner then stated that she would work on the weekend to organize the files and certain areas of the warehouse. Mr. Roof again responded negatively, explaining that he did not want to pay overtime. When Petitioner continued to insist on cleaning the office for the dignitaries, she and Mr. Roof had a verbal exchange in front of other staff. Petitioner followed Mr. Roof into his office. She then asked him what she should do with the extra electronic equipment stored in the cubicles. When Mr. Roof told her to throw it in the dumpster, Petitioner refused and began to question him about the company's policy for disposing of excess equipment. Next, Mr. Roof closed his office door and began to explain that he was tired of having to tell Petitioner things multiple times and that he did not want her to clean the office. Although Mr. Roof inappropriately raised his voice in talking to Petitioner, there is no persuasive evidence that he blocked her exit from the office after Petitioner requested him to move. Mr. Roof lost his temper with Petitioner, but he was not retaliating against her because she accused Mr. Dale of sexual harassment. Instead, Mr. Roof was frustrated because Petitioner would not follow his directions. Before the day was over, Mr. Roof and Petitioner had a civil discussion about the incident. Petitioner was upset about Mr. Roof's behavior. She subsequently expressed her feelings to Mr. May in a telephone call. On February 29, 2000, Ms. Thompson was in the Jacksonville office for the project manager's meeting. After the meeting, Ms. Thompson spoke to Petitioner about her sexual discrimination claim. During the conversation, Petitioner gave Ms. Thompson a copy of the August 24, 1999, letter to Mr. Dale and a copy of the business card. On or about March 1, 2000, Mr. May met with Mr. Roof and Petitioner to complete Petitioner's work evaluation. During the meeting, Mr. May counseled Petitioner and Mr. Roof. Mr. Roof again apologized to Petitioner for his losing his temper on February 23, 2000. The written evaluation indicates that Petitioner did not meet her job requirements in the following areas: (a) decision making; (b) reliability; and (c) quality and quantity of work. According to the evaluation, Petitioner met her job requirements in the following areas: (a) knowledge of job; (b) interpersonal and communication skills; and (c) professional development. The only area that Petitioner exceeded job requirements was in safety. The performance evaluation correctly reflected several areas in which Petitioner had a positive influence in the office. Some examples of her contributions include, but are not limited to, the following: (a) Petitioner successfully coordinated health and safety training for Respondent's offices in Florida; (b) Petitioner was an excellent person to represent Respondent when performing telephone reception duties; (c) Petitioner performed successfully as the regional human resources representative; and (d) Petitioner successfully coordinated partner meetings, including making hotel reservations and arranging for meeting rooms. The evaluation also correctly reflected Petitioner's job performance skills that required improvement. These skills included the following: (a) Petitioner had a poor attitude toward her supervisor as indicated by her failure to follow directions and her failure to understand office hierarchy; Petitioner had difficulty prioritizing her work; Petitioner often seemed overwhelmed by a minimal amount of work resulting in a disorganized desk and poorly maintained files; (d) Petitioner spent too much time in personal telephone conversations; (e) Petitioner rarely made an effort to determine when assigned work was due so that it could be completed in a timely fashion; and (f) Petitioner's word processing and spreadsheet manipulation skills were below standards required for a person in her position. Mr. May wanted all administrative personnel to work more as "project assistants," helping the professionals with the administrative tasks of particular projects. Petitioner assured Mr. Roof and Mr. May that she would make an effort to improve her performance. Soon thereafter, Ms. Thompson called to thank Petitioner for the luncheon and snacks during the project manager's meeting. Ms. Thompson also inquired whether Petitioner had thought more about transferring to the Tallahassee office. Petitioner said she would make the move if the company paid her expenses. Some time after the March 2000 evaluation, Petitioner informed Mr. May that she did not believe she could sufficiently demonstrate her skills to receive the promotion and pay raise she wanted while she worked in the Jacksonville office. Mr. May again offered Petitioner an opportunity for a fresh start in the Tallahassee office working directly for him. However, Mr. May cautioned Petitioner that her work performance had to improve if she were going to accept the offer. Mr. May agreed that Respondent would reimburse Petitioner for her relocation expenses. Petitioner moved to Tallahassee, Florida, and began working in the Tallahassee on or about May 1, 2000. In her new position, Petitioner worked as receptionist and administrative assistant. Once again her duties included providing administrative support to the professionals in the office. At all times material here, Petitioner enjoyed working for Mr. May. She does not attribute any discriminatory or harassing behavior to him. However, immediately after her transfer, Petitioner again demonstrated deficiencies in her job performance. Mr. May had hoped that Petitioner would become a "resource" for him. Instead, the opposite was true despite the additional training provided to Petitioner. Petitioner often went to Mr. May with questions regarding simple tasks that were part of her regular job duties. It did not take Mr. May long to confirm Mr. Pratt's and Mr. Roof's earlier complaints regarding deficiencies in Petitioner's performance. Mr. May began to document his observations about Petitioner's job performance. On May 8, 2000, Petitioner did not get to work until 9:00 a.m. Additionally, another employee had to take the regular FedEx to the kiosk because Petitioner did not get it out on time. On May 9, 2000, Petitioner again failed to get the regular FedEx out on time. This failure was more serious because the package contained checks in the amount of $32,000. On May 10, 2000, Petitioner did not get to work until after 9:00 a.m. Other staff members had to interrupt their work to sign for deliveries. Later that day, Mr. May told Petitioner that she did not have to put cover sheets on all her work. Petitioner then complained that she had to do "regional stuff" all the time. On May 19, 2000, Petitioner did not get the FedEx delivery out on time. The package had several checks in it, as well as an important communication regarding an offer of employment for a new employee. On May 22, 2000, Petitioner was not in the office by 9:15 a.m. In the meantime, Petitioner began to experience interpersonal relationship problems with members of the staff. For example, problems with Karen Harnett, Respondent's systems administrator, began soon after Petitioner made the move. The evidence indicates that Ms. Harnett was a bully who routinely picked on people. Ms. Harnett's attitude caused one employee to quit her job and caused another employee to seek help from Respondent's employee assistance program. However, there is no persuasive evidence that Respondent ever condoned Ms. Harnett's behavior in retaliation for Petitioner's filing of the sexual harassment complaint. In June 2000, Ms. Harnett and two other staff members found it amusing to harass an employee who worked for VALIC, an investment firm located in Respondent's office building. The harassment resulted in a feud over parking spaces in the building's parking lot. Petitioner was aware of Ms. Harnett's inappropriate actions but did not participate in the harassment. Petitioner did not know that it was customary for Respondent's receptionist to accept deliveries for VALIC when its office was closed. One day, Petitioner refused to accept a delivery of a UPS or FedEx package for VALIC. Later, the VALIC employee stormed into Respondent's office demanding to know why Petitioner had refused the delivery. Howard Engle, one of Respondent's project managers, heard the encounter between the VALIC employee and Petitioner. He went to the front of the office to see what was going on. Jimmy Hatcher, the building's owner, later complained to Mr. May about Petitioner's refusal to accept the package. Mr. May was not in the office with the VALIC incident took place. When he returned to the office, he heard several versions about the dispute. He concluded that Petitioner's poor decision-making and reaction to the angry VALIC employee had contributed, at least in part, to undermine Respondent's positive working relationship with Respondent's neighbor. On or about June 14, 2000, Mr. May discussed the VALIC incident with Petitioner. During that conversation, Mr. May also counseled Petitioner regarding her working relationship with other employees. He advised her to pay more attention to details and to improve her technical skills. Mr. May explained to Petitioner that several of the professionals in the office avoided giving her work because they lacked confidence in her work. He encouraged her to work more cooperatively with the professionals in the office. During the conversation on June 14, 2000, Petitioner admitted that she needed to improve her computer skills. She felt that everyone was against her and that Mr. May's only option was to go ahead and fire her. Mr. May later sent Ms. Thompson a summary of his conversation with Petitioner. On June 16, 2000, Mr. Engle sent Mr. May an e-mail complaining about Petitioner's substandard performance. The message stated that Mr. Engle had resorted to doing his own copying because he could not depend on Petitioner. Additionally, she had misplaced an important laboratory report, which would not have been delivered in a timely manner if another employee had not discovered Petitioner's error. Mr. Engle also complained that Petitioner had misfiled and never shown him a time-sensitive letter from the Florida Department of Environmental Protection regarding Respondent's re-certification to perform work in the state. This error could have had a calamitous impact on Respondent's business interests. In a written correspondence dated June 29, 2000, Mr. May gave Petitioner a written warning that she would be terminated if her job performance did not improve. The communication outlined specific job performance areas that required immediate and sustained improvement. As of June 29, 2000, Petitioner had misdirected incoming facsimile transmissions, failed to ensure that outgoing FedEx deliveries met the regular schedule, and sent at least one FedEx delivery to the wrong location. Competent evidence indicates that Petitioner needed to pay more attention to detail. Petitioner failed to proofread final drafts of monthly reports that she prepared. As of June 29, 2000, every such report had errors in them. Petitioner failed to focus on directions for work assignments. She often failed to return the work in the order that it was assigned. Petitioner failed to prioritize her work. She did not give project-related activities priority over day-to-day overhead issues. When Petitioner felt overwhelmed by an assignment, she was unwilling to shift gears to handle a higher priority activity. Petitioner had difficulty working the office schedule. She needed to understand that she could not work a later schedule. She also had to understand that overtime pay would not be authorized except for work directly related to client projects or for important overhead objectives. Petitioner failed to be accountable to the professional staff that depended on her administrative assistance. At times, she was unwilling to accept work assignments from staff members other than Mr. May. At times Petitioner was argumentative with her co-workers and inflexible regarding office procedures and protocols. She needed to moderate her behavior towards her co-workers. Petitioner was paid at Respondent's top pay rate for the second highest administrative support grade. She should have been serving as a resource for staff members that were not expected to have expertise in word processing. However, Petitioner's computer proficiency was at a beginners level at best. At times, Mr. May had to assist Petitioner with computer skills that she should have mastered. After receiving the written warning, Petitioner showed no improvement in her job performance or ability to work with the people in Respondent's Tallahassee office. Therefore, Mr. May terminated Petitioner's employment on July 25, 2000, for substandard work performance. Respondent's decision to fire Petitioner was based solely upon her poor performance record. It was not a result of any complaints she made against Mr. Dale the preceding year when she worked in the Jacksonville office. In making his decision to terminate Petitioner, Mr. May did not receive input from anyone in the Jacksonville office or from any other of Respondent's employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sharon Jensen 2692 Spring Lake Road Jacksonville, Florida 32210 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether, Respondent discriminated against the Petitioner based upon her race or sex and whether she was subjected to retaliation after complaining to the Respondent concerning the alleged harassment.
Findings Of Fact The Petitioner became employed on October 10, 2005, at HOM. She worked as a general laborer and finisher at times pertinent to this case. HOM is a manufacturer of mobile and modular homes at its Lake City, Florida, plant. It has in excess of 15 employees and is therefore a statutory employer with the meaning of Section 760.02(2), Florida Statutes (2006). The Petitioner has a number of blemishes on her employment record with the Respondent. She had performance problems prior to the events leading up to the termination of her employment. She was disciplined for an incident occurring on December 21, 2005, for failure to report to required overtime work, as well as for insubordination. Steve Weeks, the Respondent's Production Manager, deemed the failure to report for required overtime work to be insubordination and a violation of the company's attendance policy. She received an employee warning notice on May 3, 2006, regarding a perceived need for her to "pickup the pace and for her attendance." Mr. Weeks told Ms. Pate that she needed to increase her production pace and needed to work on her attendance and work quality. The Petitioner was given to understand that her employment could be terminated for further violations. The Petitioner maintains she has been subjected to "harassment." Specifically, she complains that her co-workers in the finishing department harassed her by "bumping into me and playing threatening songs, threatening, talking about they were going to beat my behind, you know, just constantly threatening." Her complaints concern Priscilla Berry, Katherine Belford, and Melody Adkins. Melody Adkins is a white female, Priscilla Berry and Katherine Belford are African-American females. Most of the Petitioner's complaints concern Katherine Belford and Priscilla Berry. The Petitioner admits that these individuals never indicated they were committing any alleged harassing acts because of the Petitioner's race or gender. She further acknowledges that the harassment "may not have been for my race" and that the harassment "might have been because I was a female and I was doing my job and I didn't hang with that certain group" of females. No male employees are alleged to have threatened or harassed the Petitioner and she never complained to her direct supervisor, Tommy Smith, concerning any problems related to her race or gender. Ms. Pate spoke to Supervisors Weeks and Smith in an effort to stop the harassment and threats. In response to her complaints Mr. Weeks talked to the supervisors and employees involved in the incidents Ms. Pate complained about and told them they were not to bring personal problems to the work place. Mr. Smith separated the Petitioner from Ms. Belford and Ms. Berry because of the antagonism that had developed between them. He directed her to perform her duties in a different location in order to alleviate the hostilities. The Petitioner called the HOM corporate office on June 27, 2006, and spoke to Mr. Jeff Nugent. Mr. Nugent directed the Regional Human Resources Director, William Allen, to investigate the Petitioner's complaints. Mr. Allen spoke to the Petitioner by phone on June 29, 2006, and arranged a meeting with her for July 11, 2006. The Petitioner told Mr. Allen during that phone conversation that she was being harassed and threatened and that the supervisor was not doing anything to alleviate the matter. She told him that "they" were discriminating against her because she was a black woman and the supervisors were still doing nothing to alleviate her harassment, in her view. The Petitioner met with Mr. Allen on July 11, 2006. Mr. Allen also met with other employees. The plant had been shut down during the first week of July and immediately thereafter on July 11, 2006, the Petitioner had the meeting with Mr. Allen. She found him responsive to her complaints. He took notes during the meeting with the Petitioner and with the other employees he interviewed. The Petitioner complained that she was being harassed and threatened by the above-referenced women on the job, that she "went up the chain of command" to get the harassment to stop but that it had not stopped. She did not complain to Mr. Allen that she was being harassed based on her gender or her race, however. Mr. Allen determined that the problem between Ms. Pate and the other employees was based upon difficulties in "getting along well" or, in effect, personality differences. He also determined that the Respondent had responded to the prior complaints by separating Ms. Pate from working with the employees about whom she had complained. On July 13, 2006, Mr. Smith observed Ms. Pate out of her assigned work area while using a cell phone. The use of a cell phone during working hours, and in working areas, violates company policy. Mr. Smith asked Ms. Pate to report to the plant office to speak to Mr. Weeks. Upon arriving at the office, the Petitioner told Mr. Smith and Mr. Weeks that she was leaving because she did not feel well. Mr. Weeks told Ms. Pate that she could leave the premises, but she would have to bring in a physicians note to prevent the absence from being unexcused. She returned to work the next scheduled work day and did not bring in a physician's note as directed. The previous work day's absence was thus an unexcused absence. Mr. Weeks decided to terminate the Petitioner's employment for her attendance problems and for her failure to submit a doctor's note justifying her absence of July 13, 2006. Her unexcused lack of attendance caused her to have excessive absences in violation of the Respondent's adopted attendance policy. The Petitioner's employment was terminated on July 17, 2006. The Petitioner never told Mr. Weeks that she felt her employment was being terminated in retaliation for her having called the corporate office to complain, or that she was being harassed because of her race and gender.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 10th day of December, 2007, 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 10th day of December, 2007. COPIES FURNISHED: Deborah Pate 862 Northeast Coldwater Street Lake City, Florida 32055 Kevin E. Hyde, Esquire Foley & Lardner LLP One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32201-0240 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner was retaliated against in violation of the Florida Civil Rights Act of 1992 (FCRA), chapter 760, Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the District by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). On July 1, 2016, the District began operating the educational programs at FCTC, due to the dire financial situation which had developed at the college. In taking over the programs at FCTC, the District immediately recognized that the administrative staff at FCTC was bloated and needed to be streamlined. Further, because FCTC would now be operated by the District, the District endeavored to evaluate FCTC’s structure to determine how it could operate more like a District school, including with respect to personnel structure. The District set out to reorganize and restructure FCTC to align it with the District and address administrative redundancy and financial issues. To facilitate this transition and evaluation, the District placed all administrative employees at FCTC on temporary contracts, effective July 1, 2016. This decision was made sometime in June 2016. On the morning of July 1, 2016, all employees of FCTC were called to a meeting held by Dr. Joseph Joyner, the District Superintendent. At that meeting, Dr. Joyner introduced Cathy Mittelstadt as the interim principal. At the conclusion of the meeting, all administrative personnel, including Petitioner, were offered temporary employment contracts, for a term of approximately six months. The contracts could be terminated by either party with two weeks’ notice. No administrative employee was placed on a longer temporary contract. The temporary employment contracts, including Petitioner’s, began on July 1, 2016, and terminated on December 21, 2016. Petitioner’s temporary employment contract expressly incorporates District Board Rule 6.10(3). Board Rule 6.10(3) concerns temporary employment with the District, and provides that temporary employees work for a limited amount of time. The rule does not state that temporary employees enjoy an expectation of employment beyond the contract term. As the interim principal, Ms. Middelstadt was tasked by the District with evaluating the structure of FCTC to determine how it could be streamlined to address budget and financial issues and also bring it in line with how other District schools operated. The elimination of positions at FCTC was contemplated as part of this evaluation. Every administrative position at FCTC was evaluated for potential elimination. Ultimately, Ms. Mittelstadt was responsible for recommending to the District’s Executive Cabinet (Executive Cabinet) how FCTC should be restructured. As part of this process, Ms. Mittelstadt was also responsible for recommending to the Executive Cabinet those positions that would be eliminated as part of the restructuring process. The Executive Cabinet did not reject any of Ms. Mittelstadt’s recommendations, but rather, accepted them without change. The Executive Cabinet would not have taken any action with respect to any employee working at FCTC without a recommendation from Ms. Mittelstadt. Ms. Weber had limited involvement in the restructuring process. She provided ministerial assistance to Ms. Mittelstadt during this process, but she was not responsible for, or involved in, the decision as to how the school would be restructured, or for any recommendations regarding the same. FCTC employees were kept informed as to the status of restructuring during the process. Ms. Mittelstadt and Ms. Weber did not tell any administrative employee at FCTC, including Petitioner, that they could expect their contract would be renewed or that they would retain their positions past the term of their temporary employment contract. Petitioner understood that he was being appointed to a temporary employment contract not to extend past December 21, 2016. Ms. Mittelstadt made the determination as part of the restructuring process that Petitioner’s position should be eliminated, and that his temporary employment contract would be allowed to expire pursuant to its terms. Ms. Mittelstadt recommended this course of action to the Executive Cabinet, which approved it. Through Ms. Mittelstadt’s evaluation and assessment of the needs of FCTC, she determined that a full-time grant writer was not necessary for FCTC. Certain tasks related to grants obtained by the School District, including accounting related tasks, are handled in the District’s main office, and the remaining tasks related to grants are handled at particular schools by a different position, career specialists. Indeed, no other District school employs a full-time grant writer. In furtherance of the District’s decision to streamline administration at FCTC and realign it with how other District schools operated, Ms. Mittelstadt determined that the grant writer position occupied by Petitioner, as well as another type of position at FCTC, the program manager position, should be eliminated, and the duties performed within those positions subsumed within the career specialist position, as in other District schools. The District distributed a vacancy announcement for the Career Specialist position to all FCTC employees, including Petitioner. The announcement included a job description for the position. The job description and vacancy announcement were used to fill the position. The job description provides that grant writing and management, encompassing Petitioner’s duties as a grant writer, are part of the duties, among others, of a career specialist. Petitioner did not apply for this position. Petitioner was informed at a meeting on November 18, 2016, that his contract would be allowed to expire effective December 21, 2016, and not renewed. Present at this meeting, in addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and Brennan Asplen, the District’s Deputy Superintendent for Academic & Student Services. At the meeting, Petitioner was provided a notice indicating that his temporary employment contract was expiring pursuant to its terms. Petitioner was permitted to work through the remainder of his contract term with no diminution in benefits or pay. Petitioner requested to be placed in another position at FCTC at this time, but was informed there were no vacancies posted for him to be moved to, that the District was not placing non-renewed employees into positions, and that he could apply to any position he liked when it was posted. One position, a Case Manager in the Career Pathways program, was funded from a grant, and that position was technically vacant under the grant. However, FCTC was in a hiring freeze at the time, as Ms. Mittelstadt made the decision to not fill the Case Manager position given, and during, the extensive realignment and assessment of FCTC whose budget was being scrutinized at a deep level. The District did not place any other non-renewed employees into positions. The Case Manager position was eventually advertised in April 2017. Petitioner did not apply for the position despite being informed of it and having nothing restricting him from doing so. Petitioner’s work performance played no role in the decision to eliminate his position. Ms. Mittelstadt and Ms. Weber both indicated that they did not retaliate against Petitioner for any reason. In fact, Petitioner was not the only person whose position was eliminated. Ms. Mittelstadt also recommended that six or seven other positions also be eliminated. Furthermore, approximately 12 to 15 FCTC employees resigned, and their positions were eliminated. Had those employees not resigned, their positions still would have been eliminated and those employees’ contracts would have been allowed to expire. Petitioner filed the complaint or charge, at issue in this proceeding, with the FCHR on December 22, 2016 (December 22nd Complaint). In it, Petitioner alleges that he was retaliated against in violation of the FCRA. While Petitioner was not represented by counsel at the time that he filed the December 22nd Complaint, he obtained representation from a lawyer thereafter, and during the FCHR’s investigation of this complaint. This was not Petitioner’s first complaint filed with FCHR concerning his work at FCTC. Just before the District began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed a complaint (June 27th Complaint) with the FCHR also alleging retaliation. The June 27th Complaint was received by the FCHR on June 28, 2016. Petitioner introduced no evidence showing that at the time the decision was made to place individuals on temporary employment contracts, that the District was aware of his June 27th Complaint. Petitioner alleges in the December 22nd Complaint that the District terminated his employment because he engaged in protected activity under the FCRA. Petitioner does not allege in the complaint that he was subjected to a hostile work environment or harassment due to any retaliatory animus on the part of the District. Rather, Petitioner only alleges that he believes he frustrated his supervisor at various times, not that he was subjected to a hostile work environment. On August 17, 2017, the FCHR issued a no-cause determination. On September 20, 2017, Petitioner filed a Petition for Relief from Unlawful Employment Practice, initiating the instant proceeding. In the Petition, Petitioner largely alleges that he believes the District submitted false information to the FCHR and that the District was guilty of various acts of fraud and abuses. Specifically, Petitioner alleged: Not only did the SJCSD lie about its relationship with FCTC, the SJCSD deliberately lied about my position working collaboratively with other SJCSD personnel assigned to grants administration and my unique ability to assist the SJCSD in avoiding mistakes that they were driven to make, mistakes that rose to the point that they became criminal. The SJCSD committed to a path of making such criminal errors with federal funds and falsifying their account of why they fired me. I have assembled sufficient evidence to show that the SJCSD is guilty of violating the Racketeer Influenced and Corrupt Organizations Act and that they fired me as a whistle blower having abundant evidence of their crimes committed against the public interest for the personal benefit of key administrators. In his Petition, Petitioner did not identify reasons why he believes the FCHR’s “No Reasonable Cause” finding was without merit. And other than his alleged retaliatory firing, Petitioner does not identify any other adverse effects that he suffered as a result of the SJCSD “criminal” activities, or allege that he was subjected to a hostile work environment. Petitioner alleged for the first time at hearing that the District subjected him to a hostile work environment in retaliation for engaging in protected activity. He alleged this hostile work environment centered on three actions. First, that the District did not provide him a copy of a harassment complaint filed by another employee concerning him in a timely manner, and did not set up the meetings he requested to address that complaint the way he wished. Second, that District personnel did not provide him access to “SunGard” software. And, third, that District officials asked him to sign a form related to grants that he did not wish to sign. Regarding the first allegation, sometime prior to July 1, 2016, Renee Staufaccher filed a complaint with Stephanie Thomas regarding Petitioner’s conduct. This complaint was lodged while the District was not operating the programs at FCTC. District officials told Petitioner that complaints lodged during this time period should be referred to FCTI. Once the District began operating the programs at FCTC, Petitioner reached out to Ms. Weber for a copy of Ms. Staufaccher’s complaint. Ms. Weber took steps to obtain that complaint, and it was provided to Petitioner within roughly two weeks of his request, despite Ms. Weber being out of the office one of those weeks. Petitioner requested to meet with Ms. Staufaccher and Ms. Thomas regarding the nature of the complaint and his concerns about whether the complaint was authentic. Ms. Staufaccher was no longer employed at FCTC within a matter of days of this request. Petitioner also requested to meet with Ms. Thomas only a matter of days before she ceased working at FCTC. Petitioner was not afforded the meeting or other items requested because the matter concerned old, not ongoing events occurring prior to the time the District began operating FCTC. Petitioner did not interact with, or report to, Ms. Staufaccher or Ms. Thomas during this time, and neither supervised him. Petitioner never disclosed to the District that he was suffering continued harassment at the hands of Ms. Staufaccher or Ms. Thomas subsequent to July 1, 2016. Petitioner offered no evidence that his request was handled differently from any other District employee, and Ms. Weber credibly testified he was treated the same as any other District employee in this regard. Regarding the second allegation, Petitioner alleged at the hearing that the District did not provide him access to SunGard, a computer program that had some relation to the performance of his job duties. At hearing, Petitioner represented that he was never provided access to this program. However, he later conceded that he did have access to this program during his employment. Specifically, prior to being given direct access to this program, Petitioner was provided access to the information in the program through the assistance of another District employee. This provided Petitioner with access to the information he needed to perform his job, including generating reports. Accordingly, it was not necessary for Petitioner to have direct access to SunGard to perform his job duties. The District was not authorizing extensive access to SunGard during this time because it was in the process of creating new systems and processes to bring FCTC in line with the District’s standards. In short, Petitioner was still able to perform his job, despite his complaint that he was not given direct access to SunGard. As to Petitioner’s third complaint, on or about October 2016, Jena Young, formerly employed in the District’s accounting office, asked Petitioner to sign a form related to grant accounting. Ms. Young was not Petitioner’s supervisor. Petitioner stated that he did not want to sign the form because he believed there was incorrect information on the form. Petitioner was not forced to sign the form, and was not told he must sign the form or face adverse consequences. Ultimately, he did not sign the form. The District maintains a rule governing harassment in the workplace. The rule provides a complaint procedure for employees to complain of harassment. The rule provides multiple avenues for employees to report harassment, and provides that complaints will be investigated and discipline meted out for employees impermissibly harassing others in violation of the rule. The rule prohibits retaliation against an employee who files a complaint. Notably, Petitioner never filed a harassment complaint about conduct occurring subsequent to July 1, 2016, despite his being aware of the rule. Petitioner’s protected activity at issue in this case concerns his June 27th Complaint and varied grievances that he filed while he was an employee at FCTC prior to July 1, 2016. Petitioner only offered three grievances into evidence--his first grievance, his ninth grievance and his tenth grievance-- all lodged prior to July 1, 2016, and all concerning the conduct of administrators at FCTC while it was still operated by FCTI and not the District. Petitioner’s first grievance was filed on May 21, 2015, alleging that FCTC’s then-president, Sandra Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and in e-mails. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner’s ninth and tenth grievances, both filed on June 13, 2016, allege that Ms. Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s Human Resources Director, and Ms. Stauffacher, were complicit in that nepotism. Indeed, Petitioner testified that the thrust of these grievances was that members of potential protected classes did not get to interview for jobs at FCTC, not because of those protected classes, but because they were not Ms. Fortner’s friends or family. Ms. Mittelstadt had not seen the grievances that Petitioner filed, and had no knowledge of the June 27th Complaint when she determined that his contract be allowed to expire pursuant to its terms and his position eliminated. Petitioner introduced no evidence that Ms. Mittelstadt ever saw any of his grievances or the June 27th Complaint at the time she made the decision to eliminate his position. Ms. Mittelstadt credibly testified that none of Petitioner’s grievances, requests for grievances, e-mails related to grievances, or his June 27th Complaint played any role in her recommendation that his position be eliminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 28th day of June, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Gregory Ryan Lulkoski 212 River Island Circle St. Augustine, Florida 32095 (eServed) Michael P. Spellman, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Robert J. Sniffen, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice against the Petitioner.
Findings Of Fact At some time prior to August of 2013, the Petitioner and Respondent discussed the Petitioner’s potential employment as a “Pharmacy Sales Representative” for the Respondent. The Respondent eventually offered such employment to the Petitioner, the terms of which were set forth in a letter (hereinafter “agreement”) from the Respondent (identified therein as “SCP, LLC” or “company”) to the Petitioner. The agreement stated as follows: Your job title will be Pharmacy Sales Representative and your duties include all aspects of sales and marketing to physicians and patients SCP, LLC can provide for. You will be responsible for producing leads and establishing new pharmacy sales as well as maintaining all existing accounts. You will report to members of SCP, LLC. You may be assigned other duties as needed and your duties may also change on reasonable notice, based on the needs of the company and your skills, as determined by the company. The agreement provided that the Petitioner would be paid an annual base salary of $45,000, and a commission “based on the total sales of compounded products sold to all accounts you are managing.” The salary was to be paid bi-weekly. The commission was to be paid quarterly. The agreement stated that the Petitioner would receive an additional $250 per month for the purposes of obtaining private health insurance, and that the additional payment would cease if a company health insurance plan became available to employees. The agreement stated that the Petitioner would also have access to an expense account, including a company credit card, and receive either a car or a paid car allowance from the Respondent. The agreement specifically provided as follows: YOUR EMPLOYMENT WITH THE COMPANY IS AT-WILL. IN OTHER WORDS, EITHER YOU OR THE COMPANY CAN TERMINATE YOUR EMPLOYMENT AT ANY TIME FOR ANY REASON, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE. According to the agreement, the Petitioner’s employment was to commence on September 3, 2013. Although the Petitioner was dissatisfied with the salary structure offered by the Respondent and believed that the offer was below her market value, the Petitioner signed the agreement on August 1, 2013, and accepted the employment terms set forth therein. The Petitioner’s dissatisfaction with her income was a continuing issue during her employment. The Petitioner repeatedly requested that her base salary be increased, but the Respondent was unprofitable and was unwilling to agree to the Petitioner’s request. Although the Petitioner initially developed some marketing materials for the Respondent, the Respondent was not satisfied with the Petitioner’s overall job performance. Additionally, there appears to have been disagreement between the Petitioner and the Respondent as to the responsibilities of her employment, including continuing friction between the Petitioner and her supervisor. On several occasions, the supervisor requested that the Petitioner come into the office during working hours to meet with him. The Petitioner apparently believed that her time was better utilized meeting with prospective clients; however, some of the prospective clients sought products that, for a variety of reasons, the Respondent could not supply. In any event, rather than come into the office as requested by her supervisor, the Petitioner chose to communicate with him by “after hours” email or by telephone. The supervisor was dissatisfied by the Petitioner’s failure to comply with his request. At some point in December of 2013, the Respondent determined that the Petitioner’s performance was not satisfactory and that a change needed to occur. The Petitioner was advised of the Respondent’s dissatisfaction in a meeting on December 5, 2013, between the Petitioner and a representative of the Respondent. After being advised that some type of change was going to occur, the Petitioner raised a number of complaints about her supervisor. The Petitioner complained that the supervisor used profanity, that he had hung up on her during a telephone call, and that, on one occasion, he had patted her on the head in an apparently demeaning manner. The Respondent had a written “zero tolerance” policy prohibiting all forms of harassment, including sexual harassment. The policy prohibited any form of retaliation against an employee who complained that he or she was a target of harassment. The Respondent also had a written “open door” policy that provided a specific procedure for resolving employment-related disputes. The Petitioner was specifically advised of such policies during an orientation process that occurred at the commencement of her employment with the Respondent. Additionally, the Petitioner received written copies of all relevant policies from the Respondent’s human resource director. There is no evidence that, prior to learning on December 5, 2013, that her employment was in jeopardy, the Petitioner advised any representative or employee of the Respondent that she objected to the supervisor’s alleged behavior. After the meeting on December 5, the Petitioner wrote an email to company officials dated December 17, 2013, wherein she asserted that she had “closed” a number of accounts on behalf of the Respondent, and suggested that her contribution to the company was being undervalued. She also requested reevaluation of her compensation because she believed the commission structure was inadequate. The Respondent apparently disagreed with the Petitioner because few actual sales resulted from the Petitioner’s “closed” accounts. Accordingly, during a meeting with Respondent’s representatives on December 20, 2013, the Petitioner was advised that her employment was officially being terminated. Central to the Respondent’s decision was the lack of revenue generated by the Petitioner’s sales and the unprofitability of the company. The Petitioner’s failure to comply with the requests of her supervisor also provided a basis for her termination from employment. During the meeting on December 20, the Petitioner restated the complaints she had first addressed during the meeting on December 5, and raised a number of additional complaints, including allegations of harassment or sexual harassment by her supervisor or another employee. There is no evidence that, prior to learning on December 20, 2013, that her employment was being terminated, the Petitioner had advised any representative or employee of the Respondent that she had been harassed in any manner by her supervisor or by any other employee of the Respondent. The alleged perpetrators of the harassment dispute the Petitioner’s assertions. The evidence fails to establish that any of the alleged acts of harassment or sexual harassment actually occurred. In a memorandum to the Petitioner dated December 20, 2013, the Respondent advised the Petitioner that her termination package would include salary payments for three weeks (one week of “final” pay and two weeks of severance pay), additional payment for 27 hours of accrued paid time off and unused comp time, and a total commission payment of $31.97. By letter to the Respondent dated December 27, 2013, the Petitioner restated the alleged harassment referenced herein and requested that she receive an additional two weeks of severance pay. The Respondent ultimately paid the Petitioner a total of four weeks of severance pay. The evidence fails to establish that the termination of the Petitioner’s employment by the Respondent was related to any complaint of harassment or sexual harassment, or was retaliatory in any manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's complaint against the Respondent. DONE AND ENTERED this 5th day of January, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2015. COPIES FURNISHED: Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Antonios Poulos, Esquire Poulos Law Firm 1502 West Busch Boulevard Tampa, Florida 33612 (eServed)
The Issue Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?
Findings Of Fact The Parties. The Petitioner, Sharon L. Zbikowski, is a female. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance. Ms. Zbikowski's Employment. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill. Ms. Zbikowski's Performance. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work. Ms. Zbikowski's Employment by Dr. Medero. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance. Alleged Sexual Harassment. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom. Ms. Zbikowski's Termination from Employment. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner. Ms. Zbikowski's Subsequent Employment. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment. Ms. Zbikowski's Charge of Discrimination. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following: I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment. I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The disputed issues of material fact, if any, are as listed below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The ultimate facts alleged and entitlement to relief are as listed below: . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent. The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . . . . . . Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief: "I am a female." "I worked for the above named respondent since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid." "Petitioner did not abandoned [sic] her job." The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2018.
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 material to this proceeding, Petitioner, an African-American female, was employed as a nurse at Bayside Manor ("Bayside"), a long-term nursing facility owned and operated by Respondent. Petitioner began her employment with Respondent in or around 2004, which continued until she resigned from her position on December 5, 2013. Petitioner's Complaint, which she filed shortly thereafter, raises two discrete claims. First, Petitioner asserts that, because of her race, Respondent treated her disparately by issuing her a written reprimand without cause. Petitioner further contends that she was constructively discharged from her position due to the existence of an intolerable, racially-charged working environment. Beginning with the first issue, it is undisputed that, on December 5, 2013, a member of Bayside's administration cited Petitioner for "failure to follow policies," and that the genesis of the reprimand was Petitioner's act of maintaining possession of a drug-cart key while taking a lunch break. The parties are in sharp disagreement, though, as to whether Respondent's policies required staff members to surrender drug- cart keys while eating lunch on site. On this point, the credible evidence demonstrates that, on the date of the purported infraction, Petitioner was required to turn in her drug-cart key during lunchtime only if she left the worksite. As it is evident that Petitioner remained at Bayside during her lunch break on the date in question, the undersigned is persuaded that the December 5, 2014, reprimand should not have been issued. This does not end the inquiry, however, as Petitioner must also demonstrate, in order to prove her claim of disparate treatment, that the reprimand constituted an adverse employment action and that it was issued on account of her race. Here, Petitioner's claim fails on the first prong (making it unnecessary to address the second), for the record is devoid of evidence that the December 5 reprimand led to a materially adverse consequence such as lowered pay, demotion, suspension, loss of benefits, or the like.1/ As for the claim of constructive discharge, the evidence adduced at final hearing focused almost exclusively on the conduct of Heidi Duncan, who served as Bayside's director of nursing during Petitioner's term of employment. In particular, Petitioner testified: that Ms. Duncan frequently spoke to her in a demeaning fashion; that, on one occasion, Ms. Duncan harshly——and erroneously——scolded her for leaving work unfinished at the end of a shift; that Ms. Duncan reassigned her to a different floor of the facility (by all appearances, a change that did not affect the terms of Petitioner's employment); that, on one particular day, Ms. Duncan brusquely instructed her to do as she was told, at which point Petitioner broke into tears; that Ms. Duncan forbade her (Petitioner's) husband from visiting Bayside because of his "black man's swagger"; that, on the lone occasion when she attempted to complain about Ms. Duncan to a member of Bayside's management, her concerns were brushed aside; and that Ms. Duncan attempted to stir up marital discord between Regine Smith——Petitioner's direct supervisor, who, in turn, reported to Ms. Duncan——and Ms. Smith's husband by telephoning Mr. Smith and informing him that Ms. Smith was nowhere to be found at the worksite.2/ According to Petitioner, the straw that broke the camel's back was Respondent's erroneous issuance of the December 5 reprimand. Assuming for argument's sake that Petitioner's recounting of the foregoing incidents was credible and, moreover, that each event was the product of racial animus, the evidence fails to satisfy the high threshold applicable to constructive discharge actions——namely, that the working conditions were so intolerable that a reasonable person would be forced into involuntary resignation. To be sure, the comment regarding Petitioner's husband was despicable and outrageous, and the undersigned has no doubt that Ms. Duncan's abrasive management style added unnecessary anxiety to an already stressful line of work. Nevertheless, as discussed below, it has not been shown that a reasonable person in Petitioner's shoes would have felt forced to quit, particularly since the credible evidence discloses only one attempt by Petitioner (on an unspecified date) to address her concerns with a member of Bayside's management. Accordingly, Petitioner's constructive discharge claim fails.
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 18th day of December, 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 18th day of December, 2014.
