Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent engaged in an unlawful employment action as alleged by Petitioner and, if so, what relief should be granted.
Findings Of Fact Petitioner is a black male. He identifies himself variously as a "Caribbean black," "Jamaican," and "Rastafarian." Respondent conducts its business at Port Everglades, a major Florida seaport (Port Everglades or the Port). Respondent's business is to service passenger and commercial shipping by transporting and loading cargo in and about Port Everglades. Respondent is an employer within the meaning of the applicable statutory provisions. Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when he was terminated. At all relevant times, Lizabeth Divers (Divers) has been Respondent's Director of Human Resources. In that capacity she was responsible for Respondent's personnel matters as well as its compliance with the FCRA. Her job includes, at all relevant times, hiring and firing; employee discipline; implementing company polices; and receiving and investigating complaints lodged verbally or in writing by employees about any matters affecting their employment.1 At all times material to this case, Petitioner was aware of his right to lodge complaints verbally or in writing with Divers with respect to any matter affecting his employment, including any alleged unlawful employment practice. At no time prior to his termination did Petitioner do so. The record contains no persuasive evidence concerning the composition of Respondent's workforce by race, national origin, religion, or any other classification relevant to Petitioner's claim against Respondent under the FCRA. As previously noted, Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when his employment was terminated by Divers for violating a company policy prohibiting possession of firearms or other weapons on Port property (the weapons policy). All of Respondent's employees, including Petitioner at all times material to this case, gain access to Port Everglades only by passing a security checkpoint. A security guard thereupon confirms that the individual has current port identification and parking decal. Once cleared to enter the Port, Respondent's employees have access to the entire Port, and are generally not under direct supervision as they perform their jobs. Respondent's weapons policy is grounded in reasons that were obvious to any employee, and which had to have been obvious to Petitioner. The need for such a policy is self-evident. There is no evidence that any other person employed by Respondent has ever violated the weapons policy. At relevant times Petitioner was licensed by the state to carry a concealed weapon. State licensure does not constitute authorization for Petitioner to ignore Respondent's weapons policy. Petitioner had no job-related reason to carry a gun. Petitioner's job was to drive a truck known to seaport workers as a "mule." Mules are used to transport cargo from one location to another. Petitioner's basic job duty was to drive box loads of material from one location to another at Port Everglades. Petitioner was qualified to do his job and performed his duties adequately with no prior disciplinary record. Divers was unaware of Petitioner's alleged violation of the weapons policy until the start of the business day on Monday, October 29, 2003. At that time, it was brought to her attention that one or more of Petitioner's co-workers had confronted him over the weekend regarding a bulge at his waist, and that Petitioner had confirmed that the bulge was a gun. Divers felt this alleged violation of the weapons policy was a serious accusation which, if true, would warrant immediate termination. She also felt that it posed a potentially life-threatening situation. Divers determined that Petitioner was scheduled to work that day. Divers immediately left her office and proceeded to the Broward County Sheriff's Office (BCSO) Port Everglades precinct to advise of the potential security threat. Divers sought BCSO's assistance in addressing this unprecedented and potentially dangerous situation. BCSO immediately provided assistance in the form of three armed deputies. Each officer drove his police vehicle to intercept Petitioner on Port grounds. The officers interviewed Petitioner in the presence of Divers. Petitioner freely admitted that he regularly concealed his gun in his vehicle. Petitioner had access to his vehicle throughout his shift. The officers verified Petitioner's concealed weapons permit. Divers informed Petitioner and the officers that she was terminating Petitioner's employment. There is no persuasive evidence that Petitioner protested this action or complained that it was motivated by race, national origin, or religion. Instead, the evidence established that Divers made a decision she was authorized to make, i.e., to terminate Petitioner for his admitted violation of the weapons policy. The officers disassembled Petitioner's gun, placed it in the trunk of Petitioner's vehicle, and escorted Petitioner off the Port property. There is no evidence regarding who, if anyone, was hired to replace Petitioner following his termination. Petitioner has failed to show that any other similarly situated employee who violated the weapons policy was treated differently from Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and denying all relief requested therein. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2005.
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of race or sex, and if so, what remedy should be ordered.
Findings Of Fact Apalachee Center is a not-for-profit health center providing mental health and substance abuse services in the Big Bend region of North Florida, which employs over 15 people. One of its facilities is a 16-bed mental health residential facility in Tallahassee, Florida, primarily housing men who suffer from severe mental illness. Ms. Sandra Johnson, an African–American woman and Petitioner in this case, has been a Licensed Practical Nurse (LPN) since 1984. She began working for Respondent in 2009 as the only LPN on duty on “B Shift Days” from 7:00 a.m. to 7:00 p.m. at the Forensic Residential Program. Another LPN, Ana Degg, was a white woman who worked on the “A” shift, and was the lead forensic nurse and Petitioner’s acting supervisor, though she was not actually present during the shift Petitioner worked. Most of the residents in the facility in which Petitioner worked have been found incompetent by the criminal justice system and have been sent to the program by court order. Petitioner maintained their medications, monitored their health, and helped to ensure that they did not leave the facility. At the time she was hired, Petitioner was made aware of Apalachee Center’s policies prohibiting discrimination and had been advised to immediately report any suspected discrimination to the Human Resources Department. Ms. Candy Landry, the Human Resources Officer at Apalachee Center, is proud of Apalachee’s diversity record. Apalachee employs more African-Americans than whites. Ms. Degg had some conflicts with Petitioner immediately after they began working together, but later came to the conclusion that it was just a reflection of Petitioner’s personality. Ms. Degg said that she still continued to receive some staff complaints, mostly about Petitioner’s demeanor. She testified that Petitioner “came off as gruff.” Ms. Degg was very credible. Ms. Degg consulted Ms. Jane Magnan, Registered Nurse (RN) who was the Director of Nursing, and Ms. Jeanne Pope, the Director of Residential Services, as to the best way to handle the situation. Ms. Magnan and Ms. Pope each testified that they advised Ms. Degg to start with basic lines of communication and mentoring on a one-to-one level to see if the problem could be handled before anything went to the written stage. Ms. Degg provided some handouts on interpersonal relations and “soft skills” to Petitioner and her unit and tried to coach Petitioner on how to be a bit more professional in her interactions. Ms. Degg told Petitioner that staff was saying that Petitioner was rude and she asked her to talk to people a little differently. She said Petitioner responded by saying that that was “just the way she was.” Petitioner’s conduct did not change and complaints continued. Ms. Magnan, who had hired Petitioner, believed that Ms. Degg found it difficult to discipline Petitioner. Ms. Magnan also believed there was some resistance from Petitioner in acknowledging Ms. Degg, a fellow LPN, as Petitioner’s supervisor. Petitioner had no “write–ups” from the time of her employment at Apalachee in August or September of 2009 until January of 2011. On January 21, 2011, Petitioner was presented a memorandum dated January 7, 2011, to document a Written Supervisory Session on two incidents. First, the memorandum stated that Petitioner had been counseled for failure to give a report to the oncoming nurse who had arrived late for her shift. Second, it stated that Petitioner had been counseled for being rude and unprofessional in a telephone conversation with the Dietary Supervisor. The memorandum was signed by Petitioner and by Ms. Degg. Ms. Degg testified that in response Petitioner had denied that she had failed to give a report to the oncoming nurse, but that the other staff people had corroborated what the oncoming shift nurse had told her, so she believed it had happened. At hearing, Petitioner continued to deny that she had failed to give a report to the oncoming nurse and denied that she had been rude or unprofessional in her conversation with the Dietary Supervisor. In the months following the January “write-up,” Ms. Degg did not notice any change in Petitioner’s demeanor and continued to receive complaints. She noted that she did not personally consider Petitioner’s behavior to be rude, but others did, and she could understand why. On May 18, 2011, Petitioner was presented a memorandum dated May 10, 2011, to document another Written Supervisory Session. The memorandum indicated that Petitioner had been unprofessional in communications to a Mental Health Assistant (MHA) whom Petitioner supervised. It stated that Petitioner had used phrases such as “shut up” and “get out of my face” to the MHA and that Petitioner had previously been counseled regarding this issue. The Memorandum was signed by Petitioner and by Ms. Magnan and Ms. Pope. Ms. Magnan and Ms. Pope offered Petitioner training and assistance. On the memorandum, Petitioner wrote that she did not agree with the statement and that she was willing to learn. On May 27, 2011, Petitioner’s Employee Performance Evaluation for the period April 23, 2010, through May 15, 2011, was presented to Petitioner. It indicated “Below Performance Expectations” or “Needs Improvement” in several areas, including supervision of MHAs, training of staff, unit management, acceptance of responsibility, and attitude. Hand-written notes by Ms. Magnan and Ms. Dianne VanZorge, the RN supervising the forensic unit, commented on difficulties in communicating with staff, compromised staff morale, and lack of leadership. The report noted that various employees had brought Petitioner’s attitude to the attention of the Program Director and Director of Nursing. The evaluation was signed by Petitioner, Ms. Magnan, and Melany Kearley, the Chief Operations Officer. In conjunction with this unfavorable Employee Performance Evaluation, and in accordance with Apalachee policy, Petitioner was placed on a Corrective Action Plan, a 60-day period of Conditional Probationary Status. The memorandum advising Petitioner of this action explained that Petitioner should immediately take action to maintain a friendly and productive work atmosphere, demonstrate respect and courtesy towards clients and co-workers, and demonstrate initiatives to improve Petitioner’s job and the program. The memorandum advised that any further non-compliance could result in disciplinary action or termination of employment. Petitioner’s supervisor was changed to Ms. VanZorge. Petitioner knew Ms. VanZorge because they had worked together many years earlier. Petitioner was advised in the Corrective Action Plan that Ms. VanZorge would meet with her on a weekly basis to provide any needed assistance. At the time Petitioner was placed on probation, Ms. Magnan testified that Petitioner became angry. Petitioner asked if they wanted her to quit. Ms. Magnan encouraged Petitioner not to quit, telling her that that “we are going to work this out.” Ms. Magnan and Ms. VanZorge testified that they made sure that Petitioner acknowledged that resources and coaching were available to help her. Petitioner testified that leadership, nursing management, and supervisory resources were not subsequently provided to her as promised. On June 29, 2011, Mr. Alphonzo Robinson, an African-American MHA who worked under Petitioner’s supervision, submitted complaints about Petitioner to Ms. VanZorge and Ms. Pope. Ms. VanZorge and Ms. Pope then met with Petitioner regarding these complaints. A memorandum documenting the meeting with Petitioner, prepared the same day, states that an MHA reported that Petitioner had eaten a resident’s lunch. The MHA alleged that the resident had gone out on a morning community pass, asking staff to save his lunch for him until he returned. The memorandum states that when the resident returned, the MHA went to get his lunch for him, only to find Petitioner eating the last of the resident’s food in the staff kitchen. The MHA indicated that Petitioner denied eating the resident’s lunch, saying that it had been thrown away, and directed the MHA to give the resident another patient’s meal instead. Only an empty tray without food was found in the garbage. The MHA noted that another patient’s lunch could not be substituted because the first resident was diabetic and had special dietary needs. The memorandum also indicates that several other complaints were made against Petitioner by the MHA and discussed with her at the meeting. It was alleged that the Petitioner was continually rude to staff, asked residents to run errands for her, left the commode dirty with urine and feces, and used her hands to get ice from the ice machine. The memorandum noted that at the meeting, after an initial denial, Petitioner finally had admitted that she had eaten the resident’s lunch. It also noted that Petitioner had admitted that “a while back” she had asked residents to get Cokes for her, but that now she drank water. The memorandum concluded by noting that the expectations on Petitioner’s Corrective Action Plan had been reviewed, and that it was further discussed that Petitioner was not to eat any resident meals or ask them to perform errands. Petitioner had been instructed to buy a meal ticket or bring her own, clean up after herself, and adhere to infection control policy and universal precautions. At hearing, Ms. VanZorge testified that during the meeting Petitioner admitted having eaten the resident’s lunch, but stated she had not done that for a long while prior to that. Ms. VanZorge stated that Petitioner also admitted she had gotten ice with her hands once. Ms. Pope testified that Petitioner had initially denied eating the resident’s food, but then later during the course of the meeting had admitted that she had eaten it, and also admitted that she had sent residents to run errands for her. MHA Kim Jenkins, a white woman and the second MHA under Petitioner’s supervision, testified that she knew nothing about the allegations that Petitioner ate a resident’s lunch. She testified that the bathroom was a unisex bathroom and that Petitioner did leave it in an unsanitary condition almost every time she used it, although she had been too embarrassed for Petitioner to ever discuss that with Petitioner. Ms. Jenkins said she did try to discuss all of the other recurring issues with Petitioner. She testified that Petitioner was rude on a daily basis. She testified that she had seen Petitioner going through other staff members’ mail and opening it. She testified that Petitioner did get ice with her bare hands on several occasions. On cross-examination, Ms. Jenkins stated that she did not document any of these incidents and could not remember dates on which they occurred. Pressed to provide dates, Ms. Jenkins testified that the only approximate date she could remember was the time that Petitioner sent a client with a staff member to get two hot dogs for Petitioner and the client had ended up paying for the hot dogs. Ms. Jenkins said that she knew this occurred in October because Ms. Jenkins had been assigned to the unit for only about two weeks when it happened. Ms. Jenkins testified that she clearly remembered when this occurred because Ms. Jenkins had been “written up” by Petitioner shortly afterwards for stopping at a McDonald’s drive–through on the way back from a client’s doctor’s appointment to allow the client to buy some ice cream. Ms. Jenkins testimony was very credible. Petitioner testified at hearing that the allegations in the June 29, 2011, letter of Alphonzo Robinson were not true. She testified that she did not eat a patient’s food, never asked patients to buy sodas or candy for her, never left urine and feces on the toilet seat, and that he never caught her sleeping on the job. She testified that it was a public bathroom, and noted that anyone could have left it in that condition. She also stated that someone should wonder, “[W]hy was Alphonzo Robinson in ladies’ bathroom watching toilet seats? Apparently he needs to be monitoring the patient and not the lady bathroom.” Petitioner noted that in all of the allegations against her, “[I]t is their word against mine.” In a memo dated July 1, 2011, to Ms. Kearley, Ms. Pope recommended the termination of Petitioner’s employment with Apalachee Center. Ms. Magnan, Ms. VanZorge, and Ms. Pope were unanimous in this recommendation. On or about July 6, 2011, Ms. Pope accompanied Petitioner to the office of Ms. Candy Landry, the Human Resources Officer, where Petitioner was informed that her employment was terminated. Ms. Landry testified that Petitioner had violated policies of Apalachee and that the disciplinary process and termination of employment with respect to Petitioner had followed standard procedures. Ms. Landry testified that Petitioner’s replacement was also African-American. Petitioner filed a complaint with the Florida Human Relations Commission (Commission), alleging that Apalachee Center had discriminated against her based upon her race and sex on August 15, 2011. Her complaint alleged that non-African- American employees had never been disciplined without reason, as she had been. Her complaint stated an employee had made unwelcome comments that she was “fine,” “sexy” and “beautiful.” On December 20, 2011, Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings. At hearing, Petitioner presented no evidence regarding similarly situated white employees. Petitioner presented no evidence that anyone ever made comments that she was “fine,” “sexy” or “beautiful.” She did testify that she made a note on June 20, 2011, regarding Alphonzo Robinson. Her testimony was as follows: Okay. Ready for Alphonso Robinson. This is what he states, “I’m looking for a wife. Bring your friend down here so I can look at her.” I informed Robinson to sit in day room with client. Let Kim Jenkins come from back there with the men. He states, “I don’t want to deal with the men. When I worked at Florida Hospital, we punish inmate.” I told him we don’t do that here. Social Service case managers do that. Group coordinator recommend –- group coordinators recommend treatment, member, nurse, case manager, and Ms. Pope. Robinson state, “I used to be a man that – that – I used to be a man that a husband was having problem with sex, I took care of his wife.” I stopped talking to him and just restrict everything to work only with Mr. Alphonzo Robinson. I gave this note to Ana Degg. I asked her please to address it with Ms. Pope. I never heard anything else about that. I did my job as I was told. I went by the instructions what the facility asked me to do. Petitioner testified that she prepared the note with this information on June 20, 2011, and gave it to Ms. Degg. This would have been a bit more than one week prior to Mr. Robinson’s complaints about her performance. Under cross-examination, Mr. Robinson denied that he had been sleeping on the job or had made inappropriate sexual remarks. He denied that he made the allegations against Petitioner because he was fearful he would be terminated and was attempting to get Petitioner fired first: Q You said – you made sexual statements, you told me that you had a new lady, that her husband had problems with sex, and you took care of the lady. After that I learned that, to stay out from around you, because I am a married lady. I have been married for 37 years. I don’t endure stuff like that. So after that, then later on you was in the room and you made a sexual comment. You – I said that is inappropriate, that’s not the kind of behavior – we do not come to work for that kind of behavior. * * * Q So Alphonzo – A Yes. Q -- after you made that comment, and then you said those statements, and then after that I approached you and told you that you cannot be sleeping at the desk, and then you decided to make these statements, to go to Dianne, Kim’s friend and all that, so they can get me fired before you get terminated, is that not true? A No, that’s not. Q You had never been sleeping at the desk? A No, I haven’t. There is no evidence that Petitioner mentioned the note or showed it to anyone at the Florida Commission on Human Relations in connection with her complaint of discrimination. She did not provide a copy of the note to the Division of Administrative Hearings or to Respondent prior to hearing. Petitioner testified that she found the note in her papers when she went through them. Ms. Degg was no longer Petitioner’s supervisor on June 20, 2011. Ms. Degg testified that she could not recall Petitioner ever complaining about anyone in the workplace sexually harassing her. Ms. Degg testified that she had received a written complaint about MHA Jenkins, but that she had never received any written complaint about MHA Robinson. Ms. Degg’s testimony that she did not receive the note was credible, and is accepted as true. Ms. VanZorge testified that Petitioner never complained to her about any type of sexual harassment by Mr. Robinson. Ms. Pope testified that Petitioner never complained to her about any sexual harassment. Ms. Candy Landry, the Human Resources Officer, testified that Petitioner never complained to her that she had been subjected to sexual harassment. She further testified that she was never aware of any allegations of sexual harassment of Petitioner from any source. The facts do not support the conclusion that Respondent discriminated against Petitioner on the basis of race or sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2012. COPIES FURNISHED: Sandra Johnson 284 Centerline Road Crawfordville, Florida 32327 Thomas A. Groendyke, Esquire Douberley and Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 tgroendyke@dc-atty.com Chris John Rush, Esquire Rush and Associates 1880 North Congress Avenue, Suite 205 Boynton Beach, Florida 33426 cjrushesq@comcast.net Lawrence F. Kranert, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 kranerl@fchr.state.fl.us Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2005.
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010.
The Issue Whether Petitioner was subjected to a hostile work environment condoned by Respondent due to his sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The School Board of Orange County, Florida, (Respondent) is an employer within the definition found in Section 760.02, Florida Statutes. Dexter V. Thomas (Petitioner) was an employee of Respondent, as defined in Section 760.02, Florida Statutes, during the relevant time period. Petitioner timely filed his Charge of Discrimination (Charge) with the Commission, pursuant to the Florida Civil Rights Acts of 1992, on August 4, 1995. The Commission failed to make a Cause/No Cause Determination within 180 days of the filing of the Charge. Petitioner filed a form with the Commission on January 27, 1998, seeking to withdraw his Charge and filed a Petition for Relief to proceed to an administrative hearing. Petitioner has not filed a Petition with the Commission. However, the Commission forwarded Petitioner's Charge to the Division of Administrative Hearings for a formal hearing on February 2, 1999, and this proceeding followed. Petitioner is an adult male and a United States citizen of African-American descent. Petitioner worked as a custodian at Apopka Middle School on the day shift from 1989 until his termination on November 22, 1995. Petitioner testified that he had received good evaluations until the fall of 1994, when a new principal took charge of the school. Shortly thereafter, it was Petitioner's perception that he was being harassed because of certain statements that he made to other school employees about the faculty and staff at Apopka Middle School which he believed to be true. The statements made by Petitioner were defamatory in nature. In addition, they were perceived by other school board employees as threatening to the safety and welfare of staff and students. Due to these statements and his general conduct while working his shift, Petitioner was relieved of duty with pay on September 21, 1995. On October 4, 1995, Petitioner was directed to be examined by a licensed psychiatrist at the expense of the school board. Petitioner refused to be examined by the school board's licensed psychiatrist on the grounds that it was part of the continuing conspiracy to silence him about illegal activities he believed were going on at Apopka Middle School. Petitioner was subsequently terminated by action of the school board on November 22, 1995. None of the testimony and other evidence produced by Petitioner, taken as true, could be construed to establish a prima facie case of sexual harassment by employees or supervisors of Respondent. Petitioner failed to offer any credible evidence that he was subjected to any unwelcome sexual advances, request for sexual favors, or other conduct of a sexual nature by employees of Respondent. Petitioner appears to have mistakenly checked the "race" box on his Charge of Discrimination. At the hearing, Petitioner did not raise any contentions that he suffered discrimination on the basis of race while in the employ of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: The Charge of Discrimination should be dismissed, as Petitioner's request for administrative hearing was not timely filed under Chapter 760.11(4),(6), and (8), Florida Statutes. In the alternative, Petitioner has failed to prove that he was discriminated against on the basis of his sex by being subjected to a hostile work environment and the Petition should be dismissed. DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 6th day of June, 2000. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Orange County School Board Post Office Box 3471 Orlando, Florida 32802-3471 Dexter V. Thomas 3920 Country Club Drive, Number 3 Orlando, Florida 32808 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dennis Smith, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32302-3471
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Petitioner was employed at Brevard Correctional Institution and was considered by the Department to be qualified for the position for which he was employed. Petitioner is a male, African-American. On October 24 1994, Petitioner received a Written Reprimand for the abuse of the Department's sick leave policy, which had occurred on October 21, 1994, in that Petitioner, while on authorized sick leave on October 21, 1994, attended the Dorothy Lewis trial, without authorization from the Department. Petitioner presented no evidence to show that the Written Reprimand issued on October 24, 1994, was issued because of Petitioner's race or gender; rather it was issued based on a reasonable belief that Petitioner had abused the Department's sick leave policy by attending the Dorothy Lewis trial while out on official sick leave. Petitioner presented no evidence to support the remaining allegations contained in the Petition for Relief filed by Petitioner in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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 18th day of January, 2002. COPIES FURNISHED: Hugh F. Brockington, II 19715 Eagles View Circle Umatilla, Florida 32784 Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.
Findings Of Fact Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay. Petitioner apparently declined the position. When she did so, Respondent terminated her. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989. COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Latricia W. Dukes 4189 Tatum Street Orlando, FL 32811 Gale Brandy Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes, by discriminating against Petitioner on the basis of handicap or disability, and if so, what is the appropriate remedy.
Findings Of Fact North Florida Sales Company (North Florida), the Respondent in this case, is a beer and ale wholesaler that does business in Florida and employs over 15 people. Window Mitchell, Petitioner in this case, began working at North Florida as a custodian in the maintenance department on June 22, 2009. His normal schedule at North Florida was Monday through Friday. Near the time he was hired, Petitioner received a copy of Respondent's "Employee Information Handbook." The handbook advised Petitioner of North Florida's "open door" policy that permitted employees to take any complaints or problems directly to the Human Resources Manager, the General Manager, or the President. It further advised employees that it was North Florida policy to treat all employees equally without regard to race, color, religion, sex, age, marital status, disability, or national origin. It stated that any violation of North Florida's equal opportunity policies must be reported immediately to the Human Resources Manager or General Manager without delay. The employee handbook also advised Petitioner of North Florida's policies on attendance. It required employees to give advance notice of any absence or lateness, and noted that employees who fail to maintain an acceptable attendance record would be subject to disciplinary action. On September 10, 2009, Petitioner received an Employee Warning Report noting that Petitioner had missed six days of work during his 90-day probationary period. The report stated that this amount of absenteeism was considered excessive and that immediate improvement was expected. It was signed by Petitioner and Petitioner's supervisor. On November 10, 2009, Petitioner received another Employee Warning Report. It stated that Petitioner's attendance continued to be a problem and that it was creating a burden on the maintenance department. It stated that further incidents of absenteeism, or arriving late or leaving early, would result in termination. It was signed by Petitioner, Petitioner's supervisor, and Margaret Lombardi, Human Resources Manager. There is no evidence that Petitioner ever received any further "Employee Warning Reports." On June 3, 2010, Petitioner received an Employee Performance Review. In his review, Petitioner was given a rating of "3" out of "10" on "dependability." The comment under that heading indicated that Petitioner was "out from work too many days." Petitioner received two other "3"s on his evaluation and received no evaluation above a "5" in any area. In the final section, entitled "Objectives for the Next Review Period," the first of two objectives listed was "keep all curbs in warehouse painted." The second was, "try to be at work all of the time." On July 17, 2010, Petitioner was returning from a barbecue with four friends. He testified that he had not been drinking. The car he was driving ran into a pole head-on. Petitioner's knee and leg hurt and became badly swollen. He had "little chunks of meat" missing from his left elbow and forearm. He was seen by an emergency doctor at Baptist Medical Center about 9:45 p.m., released, and given discharge instructions. On July 19 or 20, 2010, Ms. Lombardi received a paper entitled Adult Discharge Instructions on a Baptist Health form dated July 17, 2010. It indicated that Petitioner had been in the vehicle collision and had been treated for abrasions and a contusion on his right knee. In the instructions, Petitioner was told to take medications as instructed, follow up with the doctor in two days, and return to the emergency room for worsening symptoms. A box was checked indicating "no work for 2 days." Ms. Lombardi interpreted the note as excusing Petitioner from work on Sunday and Monday, and therefore expected Petitioner to return to work on Tuesday, July 20, 2010. When Petitioner did not return to work on Tuesday, Ms. Lombardi called him. Petitioner said he did not realize that the doctor's note had excused him for only two days. Ms. Lombardi told Petitioner that it did, and she told him he needed to come to work that day. Petitioner complained that his arm and leg were still hurting. Petitioner said he would return to work that afternoon, but did not. Petitioner did not come to work on Wednesday, July 21, 2010. Petitioner left a message for Ms. Lombardi and she called him about 10 a.m. Petitioner told Ms. Lombardi that he had gone to the doctor the day before and had another note excusing him from work. Ms. Lombardi asked Petitioner why he had not called her or the supervisor to let them know. Petitioner stated that he had called the supervisor, but had been unable to reach him and had been asked to call back. Petitioner said he did not call back because he did not get out of the doctor's office until after 5:00 pm. Ms. Lombardi directed him to have the note sent to her by facsimile transmission (fax). Ms. Lombardi received a form faxed from Baptist Health entitled "Discharge Instruction" about 4:38 p.m. that day, as indicated in her note prepared for Petitioner's file. It had a subtitle of "Work Release Form." The form stated that Petitioner had been seen again on July 21, 2010, and that he could return to work on July 25, 2010. The form had date and time blocks indicating "July 21, 2010" and "4:31 p.m." Ms. Lombardi testified that the form from Baptist Health indicated that Petitioner had been seen by a doctor that same day and that "I received it shortly after-–there was a discharge time on it." On the following day, July 22, 2010, Ms. Lombardi again called Petitioner. When asked about an excuse from the doctor whom Petitioner had seen on July 20, 2010, Petitioner replied, "Oh, that was a different doctor." Petitioner said that the excuse from the visit on July 21, 2010, was from the same doctor he saw on July 17, 2010. Ms. Lombardi's file note stated that this was "the second time that Mitchell has incurred absences with inconsistency in the facts surrounding that absence." Petitioner gave evasive and inconsistent testimony at hearing about whether there was ever a third doctor's excuse, in addition to the excuses of July 17, 2010 and July 21, 2010. Any of Petitioner's testimony suggesting that there was third excuse was not credible. There were only two doctor's excuses. On July 22, 2010, Ms. Lombardi filled out a "Status/Payroll Change Report" that discharged Petitioner from employment at North Florida. In the "Reason" portion of the form, Ms. Lombardi wrote, "Excessive absenteeism and multiple incidences of inconsistent facts surrounding his absences." Petitioner was immediately notified by telephone that his employment had been terminated. In that conversation, Petitioner asked Ms. Lombardi why he was being discharged. Ms. Lombardi told Petitioner that the basis for his discharge was his poor attendance. Petitioner was recovering from the injuries he received in the accident for about a week-and-a-half. After that he was fully recovered. Petitioner's substantial interests are affected by Respondent's decision to discharge him. It has been difficult to find work in the depressed economy and Petitioner has financial responsibilities. Petitioner has three children. Petitioner was employed by Wage Solutions, working the warehouse at Liberty Furniture, unloading furniture and bringing it to the showroom from March 2011 to August 2011. Petitioner lost that job because that business closed. At the time of hearing Petitioner was not employed. Petitioner went to the Florida Commission on Human Relations. He did not complain to them that he had been discriminated against on the basis of a handicap or disability. He just wanted an investigation into his discharge because he believed he had been terminated unfairly. He testified: Doing – I guess, telling my side of the story to file whatever they wanted me to file. I didn't even know it was doing – about the disability or not. I didn't know they signed me up under that. The only thing I thought, they were going to investigate to see why I got terminated. * * * And from there, I guess that – that's it. I knew I had to come to court from there, so I was just really based on that. I knew I had to show up to court for – I wasn't looking for all of this to come down to this. The only thing – I just wanted to know why I got fired, because I – about my attendance or being absent, but I had excuses for them. On October 12, 2011, Petitioner filed a Petition for Relief against Respondent claiming an unlawful employment practice, alleging that he was wrongfully fired because of a mishap, which was referred to the Division of Administrative Hearings the same day.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 4th day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2012.
