The Issue The issue in this case is whether Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2010).
Findings Of Fact At the hearing, the parties stipulated to the facts numbered 1-4, as follows: Petitioner was terminated from his employment with Respondent on March 13, 2009. Petitioner's deadline for filing his complaint with the Florida Commission on Human Relations (FCHR) was March 14, 2010. Petitioner emailed a Technical Assistance Questionnaire to the FCHR on February 18, 2010. Petitioner signed an Employment Complaint of Discrimination and dated it March 24, 2010. In addition to the stipulated facts, the undersigned noted that the Complaint is stamped received by the FCHR at 10:48 a.m. on March 25, 2010.
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 claim of discrimination. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2010. COPIES FURNISHED: 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 Lacey Hofmeyer, Esquire Danielle Garno, Esquire Greenberg Traurig 1221 Brickell Avenue Miami, Florida 33131 James Jean-Francois, Esquire Law Offices of James Jean-Francois, PA 6100 Hollywood Boulevard, Suite 211 Hollywood, Florida 33024
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 Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, First Federal Savings and Loan Association of Putnam County (petitioner or First Federal), owns and operates a full service savings and loan institution in the Palatka, Florida area. As a part of its regular business operations, petitioner utilizes the services of Florida Informanagement Services, Inc. (FIS), a data processing servicing firm which provides bookkeeping and data processing services. In performing these services, FIS collects financial data from computer terminals located at petitioner's offices and returns processed data in the form of financial statements, payrolls, tax reports, accounts receivable and payable statements, and related information to petitioner. Respondent, Department of Revenue (DOR), is the state agency charged with the responsibility of enforcing the Florida Revenue Act of 1949, as amended. Among other things, DOR performs audits on taxpayers to insure that all taxes due have been correctly paid. To this end, a routine audit was performed on petitioner covering the audit period from June 1, 1985, through December 31, 1989. After the results of the audit were obtained, and an initial assessment made, on September 13, 1991, DOR issued a notice of decision wherein it proposed to assess petitioner $43,204.91 in unpaid taxes. After a petition for reconsideration was filed, DOR issued its notice of reconsideration reducing the assessment to $37,805.92. The parties later reached an agreement as to all issues except an assessment of $11,476.12 for unpaid sales taxes plus applicable interest and penalties. The taxes relate to a charge on the monthly statement issued to First Federal by FIS and which is identified as "total data communications". The assessment concluded that the data communi-cations charge is a taxable sale of a private communication service or a telecommunication service within the meaning of Subsections 203.012(4)(a) and 203.012(5)(a), Florida Statutes (1989). Contending that the assessment should be withdrawn, petitioner initiated this proceeding. The Services Provided by FIS Established in 1968 by a group of savings and loan institutions, FIS is a data processing service bureau headquartered in Orlando, Florida, and which contracts with approximately one hundred clients, all savings and loan institutions, to provide comprehensive data processing and accounting-type services. Its sole purpose is to provide its clients with state of the art data processing services at an economical shared cost. The services being rendered here are commonly provided to banking institutions throughout the state by FIS and a number of similar data processing companies. FIS utilizes a network of long distance telephone lines leased from various telephone companies located throughout the state to collect financial transaction data from each of its member clients, including petitioner. Keyboards are utilized by bank employees at each office to input financial transaction information (e. g., a deposit to or withdrawal from a checking account) to a "data line" or communication channel, which is a multi-link long distance communication pathway leased by FIS from a telephone company. This information is collected by a front end processor and transmitted through the data line to the computer system (mainframe) located at FIS headquarters in Orlando. The computer acknowledges receipt of the transaction, records and processes the transaction, and sends a response back through the data line to the sending terminal. This process is repeated hundreds of times each day for every terminal located at each bank office. At the end of each business day, FIS processes all of the transaction data collected during the day into comprehensive reports which summarize such activities as loan and account balances, bank department activities, automatic teller transactions, and similar information. These reports are then delivered to the banks by courier the next morning. It is noted that during the first two years of the audit period, First Federal had a single data line with twenty-six terminals. In 1987, a second data line was added due to an increase in terminals. Today, First Federal has four offices with a total of forty-eight terminals on two data lines. FIS and its clients have entered into an information processing agreement which governs the provision of services and their price. This contractual relationship between FIS and First Federal began in 1974. Copies of the 1982, 1985 and 1987 agreements have been received in evidence as respondent's exhibits 6 and 7 and petitioner's exhibit 4, respectively. Paragraph 4.(c) of the first two agreements provides that "(t)elecommunications for on-line services will be provided by FIS as part of this agreement" while the 1985 agreement also provides that "(p)rice increases charged to FIS by telecommunications senders will be passed on to the institution". The copy of the 1987 agreement introduced into evidence is incomplete but the testimony suggests that except for the word "telecommunications" found in paragraph 4.(c) of the earlier agreements, the same provisions appear in the more recent agreements. The Data Communications Charge FIS issues on a monthly basis an itemized statement for its services. Among the charges on the statement is one labeled "total data communications", which is based upon the total number and types of computer terminals which can access the FIS computer. The charge is not based on the actual cost of establishing and maintaining the communication pathway but rather is assessed equally upon all FIS clients as an identical monthly flat fee per terminal charge of $86. The same flat fee per terminal charge is assessed regardless of the number of computer terminals utilized by an institution, the number of transactions per terminal, the amount of telephone time consumed, or the geographic distance between the FIS mainframe computer and the customer's location. Thus, the same fee per terminal would be assessed on a bank in Orlando a few blocks from the mainframe computer as one located in Pensacola or the Florida Keys. The data communications charge represents a number of cost elements including the establishment and maintenance of the FIS mainframe computer system, research and development, technical support, company overhead, and the cost of the leased telephone lines. However, the per terminal charge of $86 is neither a direct nor indirect pass-through by FIS of the actual cost of establishing and maintaining the communications link with any individual customer. Is the Transaction Taxable? DOR acknowledges that the various data processing services that First Federal purchases from FIS, which is acting as a "service bureau" under Rule 12A-1.032(6), Florida Administrative Code, are "professional services" and are exempt from taxation under Subsection 212.08(7)(v)1., Florida Statutes. It also admits that as of the date of hearing, it had no "firm" policy on the issue presented herein and was still in the process of developing one. Even so, DOR contends that the services identified as "total data communications", which include the communication network through which FIS collects the raw financial data from its clients for processing, are taxable since these services constitute a private communication service as that term is defined in Subsection 203.012(4)(a), Florida Statutes (1989). There, the term is defined as a communication service that entitles a subscriber "to exclusive or priority use of a communication channel." DOR first relies upon the fact that during the audit period FIS and First Federal had entered into agreements for FIS to provide First Federal with "telecommunications" for its "on line" services. DOR construes this language in a literal sense to mean that FIS is "selling" a telecommunication service. In addition, the agreements allow FIS to increase the data communication charges based upon potential increased telephone costs to FIS. Again, DOR interprets this language as further evidence that FIS is merely reselling a telephone service to its clients. DOR also points out that First Federal has a reasonable certainty of getting its communication through on the communication channel and that no other communication can take place on the line while First Federal is transmitting or receiving a message. It considers irrelevant the fact that First Federal may not have priority or exclusive rights over any other FIS client having access to the FIS data collection system. Thus, DOR concludes that First Federal has "exclusive or priority use" of a communication channel within the meaning of the law. It further concludes that FIS is engaged in the sale of a private communication service (via the leased telephone lines) which gives First Federal access to FIS's computer. The evidence shows that the computer terminals located at petitioner's offices are commonly referred to as "dumb" terminals whose sole function is data input, that is, to transmit data from the institution to the computer mainframe. They cannot be utilized to access the FIS mainframe to perform any type of individualized date processing or other analysis. Further, they cannot communicate with each other using the data lines nor can they communicate with any other financial institution or other computer system. In addition, the lines cannot be used for regular voice communication, and when the institution is closed, the lines cannot be used for any other purpose. Over ninety percent of FIS member institutions share portions of one or more data lines with other FIS clients. Although during the audit period First Federal did not share its two lines with another institution, if one should open an office in the Palatka area and utilize FIS's services, its terminals would be placed on the unused portion of First Federal's lines, assuming such unused capacity is then available. In addition, all of the data collection and processing services are controlled directly by FIS. Thus, no FIS client has any priority in transmitting transaction information or obtaining data processing services over any other FIS customer, regardless of size or geographic location. Rather, the data is collected by FIS according to a pre- determined polling system controlled by a communication processor. Since a single data line can collect information from as many as thirty individual computer terminals, the polling system must "poll" each of those thirty terminals in numeric sequence to determine if the terminal has any data to transmit. Once the polling system has "polled" a particular terminal, the terminal is unable to transmit data until all other terminals have been polled. Further, while a message is being transmitted to or received from the computer mainframe, no other transmissions can take place on the data line, and there is no provision in the system to interrupt a transmission. Processed data is then returned to the institution according to the same numeric cycle. Therefore, no institution has "use" of a data line other than that which is directed by FIS, and the fact that a client can be reasonably assured that FIS will collect its data transmissions in a timely manner does not equate to a "priority use" of the communication pathway. The overall cost of the telephone line "network" represents a substantial portion of the total data communication charges assessed to each customer. However, the terminal charge made to each FIS customer is not truly representative of the cost to FIS of obtaining and providing the actual communications link between FIS and an individual bank. As noted earlier, and by way of example, the cost of establishing and maintaining a telephone link between FIS and a small bank in the Florida Keys or the Panhandle would substantially exceed the data communications charge assessed to those institutions. FIS receives telephone bills from every local and regional telephone company from which it leases telephone lines. During the audit period, it was not uncommon for FIS to receive between seven hundred and one thousand telephone bills per month for services to approximately eighty-four full service data processing clients. These bills included both sales and gross receipts taxes and were paid by FIS on a monthly basis. The FIS accounting department does not analyze the individual charges on the various statements to determine the monthly cost of a data line to an individual customer, nor are the charges made to FIS by the various telephone companies for each FIS client rebilled to any particular institution, either directly or indirectly. Rather, FIS absorbs the cost of the entire telephone network as a part of its normal business expense. The earlier information processing agreements refer to "telecommunication services" being provided under the agreement. However, the agreements also refer to the existence of one or more third party providers (i.e., regulated telephone companies) of the actual telephone service, and FIS makes no charge for "telephone service". While the agreements allow FIS to increase the data communications charges based upon the potential increased telephone costs to FIS, the charges assessed to FIS customers are unrelated to the actual cost of providing the service between any particular institution and the computer. Indeed, the provision simply allows FIS, when deemed to be necessary, to increase the terminal fee based upon an increase in one of its many cost components. Even if this right is exercised, any increase in that charge would be equally assessed on all clients throughout the state, regardless of their size or location. However, it should be noted that FIS has experienced a substantial increase in costs in providing the telephone service in recent years, but has not raised the data communication charge to any client since 1986. FIS has never charged First Federal for "telephone service". It is irrelevant to the institution how FIS establishes or designates its charges. If the data communication charge was deleted and the costs of the other tax exempt charges increased accordingly, First Federal would still continue to utilize FIS's services. During the audit period, FIS was not registered with DOR as a provider of private communication services. Indeed, its only business is providing data processing and accounting-type services. If it was reselling private communication services, as DOR suggests, it would have to register with DOR and pay a 1.5 percent gross receipts tax on the actual cost of operating the system. DOR recently concluded an eighteen month audit of FIS for the period 1985-1989 and determined that FIS was not liable for gross receipts tax on the sale of any alleged telecommunications services. Finally, testimony by an expert who served as DOR executive director during most of the audit period established that when the law was amended effective July 1, 1984, to impose both sales and gross receipts taxes on the sale of private communication services, DOR interpreted the amendments to apply to those providers who were selling communication services which escaped taxation by bypassing the existing telephone companies or other regulated utilities. This included those who provided communications by microwaves, satellites, privately owned telephone lines and "smart buildings", which utilize a combination of both public and private communication systems. The expert further established that if the issue had been raised during his tenure, DOR would not have construed the activity here to be a taxable sale of a private communications service since neither FIS nor its clients were operating outside the existing telephone company pathways thereby escaping the sales and gross receipts taxes. In summary, the evidence supports a finding that First Federal does not have exclusive or priority use of the data lines and accordingly the challenged service cannot be considered a private communication service. In addition, because FIS could not function as a data processing company without the data collection system, which is an integral part of its comprehensive data processing services, the collection of raw financial data must be construed as a tax exempt service. Therefore, the assessment against First Federal should be withdrawn.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order withdrawing (rescinding) the assessment against petitioner. DONE AND ENTERED this 5th day of April, 1993, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 5th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2763 Petitioner: Partially accepted in finding of fact 1. Partially accepted in findings of fact 2 and 3. Partially accepted in findings of fact 4 and 6. 4-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 7. 10-12. Partially accepted in finding of fact 9. Rejected as being unnecessary. Partially accepted in finding of fact 10. 15-16. Partially accepted in findings of fact 7 and 10. 17-18. Partially accepted in finding of fact 8. 19-20. Partially accepted in finding of fact 13. 21-23. Partially accepted in finding of fact 14. 24. Partially accepted in finding of fact 16. 25-27. Partially accepted in finding of fact 15. 28. Partially accepted in findings of fact 11 and 12. 29-30. Partially accepted in finding of fact 11. 31-35. Partially accepted in finding of fact 12. 36. Partially accepted in finding of fact 5. 37-39. Partially accepted in finding of fact 18. Rejected as being unnecessary. Partially accepted in finding of fact 17. Partially accepted in findings of fact 3 and 4. Respondent: 1-2. Partially accepted in finding of fact 1. 3-4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 10. 7. Partially accepted in finding of fact 5. 8. Partially accepted in finding of fact 10. 9. Rejected as being contrary to more credible and persuasive evidence. 10-13. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Mr. Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, Esquire General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Patrick J. Phelan, Jr., Esquire P. O. Box 669 Tallahassee, FL 32302 Lealand L. McCharen, Esquire Department of Legal Affairs The Capitol-Tax Section Tallahassee, FL 32399-1050
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of age.
Findings Of Fact The Respondent initially employed the Petitioner in the maintenance department in January 1996. There is no evidence that the Petitioner’s employment in the maintenance department was unsatisfactory. In May 1996, the Petitioner transferred into the production department. The Petitioner’s supervisor in the production department described his performance as somewhat unsatisfactory but made no written report of any problems. On September 17, 1996, the Petitioner transferred into the laboratory and began work as a lab technician. The transfer in the lab technician position was at the Petitioner’s request. On October 21, 1996, Richard Barnes, an employee of the Respondent, assumed supervisory responsibility for the laboratory operation. On November 8, 1996, Mr. Barnes met with the Petitioner to discuss the job. At the time of the November 8 discussion, the Petitioner had been working in the lab for almost eight weeks. The Respondent’s lab employees are responsible for assuring that the materials produced by the plant comply with the "release specifications" set by the buyers of the materials. During the discussion, the Petitioner was asked about specific tasks assigned to lab employees. His response was incorrect and indicated a lack of familiarity with lab procedures. The Petitioner was informed that his job performance was unsatisfactory. Over the next week, Mr. Barnes continued to monitor the situation, and subsequently decided to terminate the Petitioner’s employment for unsatisfactory performance. On November 18, 1996, the Respondent terminated the Petitioner’s employment on the grounds of unsatisfactory work performance. At the time of the termination, the Petitioner was 56 years old. During the time of the Petitioner’s transfer into, and termination from, the lab, the Respondent was in the process of expanding the number of lab employees from six to ten employees. Shortly before terminating the Petitioner’s employment, the Respondent transferred another employee, of similar age as the Petitioner, into the lab. Shortly after the Petitioner’s termination, Respondent transferred another employee, younger than the Respondent, to the lab. The transfer of the younger employee was being processed prior to the termination of the Petitioner’s employment. There is no evidence that a transfer of the younger employee was related to the termination of the Petitioner’s employment. The evidence fails to establish that termination of the Petitioner’s employment was based on his age. There is no evidence that the Respondent discriminated against the Petitioner on the basis of age. There is no evidence that the Petitioner suffered any economic injury based on the termination. He became employed shortly after the termination at a salary higher than the Respondent was paying him. Subsequent employment has included additional increases in compensation. The Petitioner asserts that had he remained employed by the Respondent, his compensation would have included promotions and increased compensation. The evidence fails to establish that the Petitioner would have received further promotions from the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed by Terry B. Hillman. DONE AND ENTERED this 28th day of November, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of November, 2001. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Terry B. Hillman 2048 Laurel Lane North Fort Myers, Florida 33917 Robert E. Tardif, Jr., Esquire Duncan & Tardif, P.A. 1601 Jackson Street, Suite 101 Post Office Box 249 Fort Myers, Florida 33902-0249 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues are whether Respondent (“the Alachua County Board of County Commissioners” or “Alachua County”) committed one or more unlawful employment practices and/or retaliated against Petitioner (“Kalisha Eagle”) after she reported allegations of disparate treatment to Alachua County’s Equal Employment Opportunity Office.
Findings Of Fact Findings Adduced from Testimony and Evidence Presented during the Final Hearing The Alachua County Board of County Commissioners has adopted a policy mandating that “[d]iscrimination against any person in recruitment, examination, appointment, training, promotion or any other employee action because of political opinions or affiliations or because of race, color, age, sex, religion, national origin, marital status, disability, sexual orientation, gender identify or expression is prohibited.” That same policy statement also prohibits “[r]etaliation against any person for bringing an allegation forward, filing a complaint or participating in an investigation of alleged unlawful discrimination.” Alachua County’s governmental offices are served by an Information Technology Department (“the IT Department”) which consists of five teams: the help desk, applications, security, telecommunications, and networking. The network team handles infrastructure or hardware- related requests that require someone to go into the field in order to resolve a problem. The network specialist position is an entry level position for the network team, and there is only one network specialist position in the IT Department. The network specialist’s duties include desktop support and assisting network analysts in projects and tasks involving server support and network infrastructure. Also, the network specialist is the “first responder” to any help desk calls that cannot be resolved within 30 minutes over the phone. In addition, the network specialist installs software and ensures that devices such as printers and scanners are operating properly. The network team also consists of network analysts who handle more complex tasks than the network specialist and perform high-level work on servers. There are five to seven network analysts in the IT Department. During the time period relevant to the instant case, Virgilio Vensamoye managed the network team. Much like the information technology field as a whole, Alachua County’s IT Department predominantly consists of males. Of the 44 employees in the IT Department, approximately 34 are males and 10 are females. There are no females currently working on the network team. The IT Department hired Ms. Eagle (an African-American female) on August 4, 2008, to work on the help desk as a support technician. Ms. Eagle had a substantial amount of experience with and/or knowledge of information technology prior to beginning her employment with Alachua County. For instance, she earned a certificate in PC Support Services from Santa Fe Community College in 2001 and an associate of science degree in computer information systems analysis from Santa Fe Community College in 2002. Ms. Eagle has also earned several certifications related to computer science. Ms. Eagle’s performance evaluations and the testimony given at the final hearing indicate that she was performing well at the help desk. Following an interview,1/ during which she outperformed two other internal candidates, Ms. Eagle was promoted to the network specialist position on February 1, 2010. The network specialist position paid Ms. Eagle $22.33 an hour and was a 59-percent increase over her previous compensation rate. In the two years following her promotion, Ms. Eagle continued to perform well. For example, Mr. Vensamoye wrote a performance evaluation covering the period between October 1, 2010, and September 30, 2011, stating the following: “Kalisha has an exceptional attitude for helping us to resolve any problem we may have. She has taken over the tasks to assist the help desk as a first responder to help desk calls and ISR’s. She is always willing to help at a moment’s notice like she did when the Guardian ad Litem moved to their new offices.” Ms. Eagle made it known to several of her co-workers that she was looking to be challenged through her work and to use those challenges to grow as an IT professional. That desire was also set forth in her performance evaluations. In the performance evaluation mentioned above, Ms. Eagle wrote that, “I want to learn and have more participation during new server installations, setup and administration of Active Directory.” When their work schedules allow, IT Department employees have opportunities to work with more experienced co- workers and learn through on-the-job training. The testimony presented at the final hearing strongly suggests that network analysts within the IT Department are willing to assist those with less knowledge to improve their skills through on-the-job- training. In October of 2011, David Velez (a network analyst) left the IT Department. While his position was vacant, Mr. Vensamoye assigned some of Mr. Velez’s network analyst duties to Ms. Eagle. That decision was set forth in a November 7, 2011, e-mail stating that Ms. Eagle “will be taking over Animal Services and Community Services but during this transition, please keep Kenny and me informed of any help desk calls assigned to Nikki2/ for these two depts. I want her to have a successful take over in responsibilities.” Ms. Eagle testified during the final hearing that the aforementioned e-mail led her to believe that she would be hired to fill one of the vacant network analyst positions. That belief may have been reinforced by a November 28, 2011, e-mail from Mr. Vensamoye which described special circumstances under which the network analysts (who are salaried employees) could be paid for working an amount of hours beyond what is considered usual and customary. Mr. Vensamoye began his November 28, 2011, e-mail by stating the following: “To all, (Except Nikki because this does not apply to you at least not yet but you need to know too).” Ms. Eagle also believed that a promotion to network analyst was imminent because of her understanding that two people who previously held the network specialist position (Chris Johnson and Ian Van Kirk) had become network analysts approximately 18 months after they were hired as the network specialist. A committee interviewed Ms. Eagle for the network analyst positions, but her inability to answer certain questions demonstrated that she was not ready to assume that role. The IT Department ultimately hired two external applicants to fill the vacant positions. Mr. Vensamoye testified that the successful candidates had prior experience as network analysts and gave good interviews. In addition, one of the applicants had a veteran’s preference. Ms. Eagle was very upset that she was not hired to fill one of the vacancies and felt that the questions asked during her interview were unfair. There was no testimony or documentary evidence indicating whether any other network analyst positions came open during Ms. Eagle’s tenure in the IT Department. Mr. Vensamoye testified that vacancies at the network analyst level are infrequent. Ms. Eagle became even more upset when one or more of her co-workers asked for the equipment she had been using to handle the network analyst duties that Mr. Vensamoye had assigned to her via the November 7, 2011, e-mail. Ms. Eagle asserts that no one told her that she would no longer be handling network analyst duties once the vacant positions were filled. Because of the unsuccessful interview and the equipment issue mentioned above, Ms. Eagle visited Alachua County’s Equal Employment Opportunity Office (“EEO Office”) on January 12, 2012. Up to this point, Ms. Eagle claims that she was receiving enough opportunities to acquire the skills necessary to become a network analyst. Ms. Eagle did not file a formal complaint on January 12, 2012, but she did meet with an intake specialist within the EEO Office. The intake specialist made the following entries in the EEO Office’s computer system describing Ms. Eagle’s allegations: [Ms. Eagle] is upset that she is being unfairly treated. She says she is being passed over for certain jobs & projects that could lead to on the job training & experience & promotions. [Ms. Eagle] says her supr. [sic] Ken H., takes her equip. [sic] which impairs her ability to perform tasks and gives it to news emps. [sic]. [Ms. Eagle] says she interviewed for a position w/i [sic] her area and the position was given to two newer ext. [sic] emps. [sic]. [Ms. Eagle] says Ken said to her that she is not given certain projects becuz [sic] they require the tech to “get under desks” or work after hours/weekends becuz [sic] she is a single parent. [Ms. Eagle] says she never suggested that daycare was a problem and it prevents her from recd [sic] overtime. [Ms. Eagle] spoke with mgr. [sic] Vensamoye who says he will address the issue. Soon thereafter, Jacqueline Chung (the lead person in the EEO Office) learned of Ms. Eagle’s allegations and spoke to her. However, Ms. Eagle stated that she did not want to file a formal complaint. Instead, her visit to the EEO Office was merely a way for her to explore her options. Ms. Chung discussed Ms. Eagle’s concerns with the IT Department’s management. Because of her visit to the EEO Office, Ms. Eagle asserts that the IT Department began to retaliate against her by not assigning her to work on high-level projects. According to Ms. Eagle, her work for the remainder of 2012 was limited to desktop support and only one “project.” On or about Christmas of 2012, Ms. Eagle was seriously injured in a car accident and did not return to work until March 10, 2013. According to Mr. Vensamoye, Ms. Eagle had not completely recovered from the car accident upon her return to work. As a result, Mr. Vensamoye assigned Ms. Eagle to “light duty” tasks which would not require her to lift heavy objects or walk long distances. At the beginning of 2013, Ms. Eagle began to feel isolated at work. She alleges that her work orders decreased and that she was only allowed to observe others doing high-level work. Ms. Eagle would have preferred that she be allowed to do that work with someone watching and providing feedback. Ms. Eagle further alleges that she was slowly being removed from field work. Another issue arose when Ms. Eagle was allegedly asked to “groom” William Martinez. This was supposedly communicated to her via an e-mail dated May 14, 2013, in which Kenny Shore (the person who usually assigned work to Ms. Eagle and others in the IT Department) asked Ms. Eagle to rebuild a computer from scratch. Along with other instructions, Mr. Shore stated that “we want Billy Martinez to observe/assist with this project. Use him as much as you can to assist you with things like updates, backing up the data, whatever you think. Want to get Billy up to date with this kind of a project.” The IT Department was not providing any preferential treatment to Mr. Martinez. Mr. Martinez began working for the IT Department 19 years ago as a support technician on the help desk. At some point after he was unsuccessful in obtaining the network specialist position that was ultimately offered to Ms. Eagle, Mr. Martinez concluded that he would have to take matters into his own hands in order to earn a promotion. Mr. Martinez’s first step in earning a promotion involved handling help desk calls that could not be handled over the phone. As mentioned above, the help desk personnel typically forwarded such calls to the network team, and a member of the network team then went out into the field in order to resolve the problem. However, rather than forwarding such calls, Mr. Martinez handled them himself, and he was doing so based on his own initiative. Members of the network team came to respect Mr. Martinez’s abilities. They allowed Mr. Martinez to watch them perform high-level network tasks, and they eventually allowed him to perform such tasks. He ultimately earned a promotion to senior support technician. As a result of the issues described above, Ms. Eagle asserts that she visited Mr. Vensamoye’s office on September 30, 2013, and was ready to immediately tender her resignation. According to Ms. Eagle, Mr. Vensamoye responded to her concerns by offering her a part-time schedule. Ms. Eagle signed and submitted a letter to Mr. Vensamoye on September 30, 2013, stating the following: Due to extenuating circumstances dealing with the daily care of my children, I am formally requesting a reduction of my work schedule in order to accommodate the needs of my family. Upon approval, I am requesting to change my schedule to 8:30am- 12:30pm, Monday through Friday effective at the earliest convenience. I understand my salary will be adjusted accordingly to this reduced working schedule. I certainly appreciate all the assistance you may provide to this request. A memorandum dated October 1, 2013, and signed by Mr. Vensamoye and Ms. Eagle indicates that her request to work part-time was approved, and she began working 20 hours a week on October 7, 2013. The IT Department prides itself on resolving its clients’ problems as quickly as possible and providing prompt customer service. Witnesses from the IT Department persuasively testified that it is efficient to have a single person or group of persons working continuously to resolve a problem. Under such circumstances, the problem is typically solved much faster than it would be if assigned to someone working a part-time schedule. Therefore, the IT Department did not assign any complex tasks to Ms. Eagle while she was on a part-time schedule. Her tasks were limited to those that could be handled relatively quickly. At some point in 2014, Mr. Vensamoye became concerned with certain aspects of Ms. Eagle’s behavior at work. Accordingly, he met with her on June 9, 2014, and issued the following “memorandum of understanding” which stated: As a follow up to our conversation today, we have agreed to take the following actions: Your schedule will remain 8:30 to 12:30 Monday to Friday as we agreed on October 7th, 2013. You are expected to be on time for assignments and meetings. Do not leave team meetings without express permission. Every Monday morning you will meet with Kenny Shore to review the list of tasks assigned to you and to plan your assignments for the week. On a daily basis, Victor Paul will follow up the progress of tasks assigned to you and he may make any necessary changes to your work load as priorities change. You must communicate immediately with Victor or me if you have any type of concerns that may affect your job performance. Limit the personal use of the phone calls during your assigned work schedule. Please be sure your cell phone bill is in good standing to avoid disruptions in service. The County will not be able to reimburse you for cell phone services for the month disruption of services occurs. Do not spend extended periods of time in consultation with Orin Yaw during your work day. You are disrupting his tasks and yours. If you need to consult on any technical issues, please refer to a member of the network team. After receiving the memorandum of understanding, Ms. Eagle returned to the EEO Office on June 17, 2014, to complain about the memorandum. Ms. Eagle also reported that nothing had changed since her last visit to the EEO Office in January of 2012. Ms. Eagle believed that the counseling memorandum was further retaliation for her initial visit to the EEO office. Ms. Eagle also thought that the IT Department was beginning to retaliate against her through other means. For example, Ms. Eagle was supposed to begin taking the lead on certain assignments in June or July of 2014. However, she had to complete a background check beforehand. Ms. Eagle saw no need for a background check when she had spent the last six years working for Alachua County. Ms. Eagle further claims that the IT Department retaliated against her by closely monitoring her time and assigning her to work with interns. Ms. Chung met again with Ms. Eagle for about two hours on July 21, 2014. In a July 22, 2014, e-mail, Ms. Chung summarized Ms. Eagle’s concerns as follows: Process for work order assignments (not being given work and hearing that others are getting assignments) Departmental assignments (not given certain depts [sic] even after being trained on their system) Computer builds (part of your position responsibilities, not given to interns) Being told to assist interns and others on assignments instead of being given the lead. The perception that others are being groomed/their futures considered, but you are not able to work on a full-time basis. On July 23, 2014, Ms. Chung sent an e-mail to Ms. Eagle notifying her that she was going to meet with Mr. Vensamoye that day about the concerns listed above. Ms. Chung also stated that she intended to schedule a follow-up meeting with herself, Ms. Eagle, and the management of the IT Department because it would “be helpful to have all parties at the table as we discuss a game plan to move forward.” Ms. Eagle, Ms. Chung, the County’s Human Resources Department, and the IT Department met in September of 2014, to address Ms. Eagle’s concerns. However, Ms. Eagle became frustrated with Ms. Chung and the Human Resources Department and essentially dismissed them from the meeting. Ms. Eagle made it known that she only wanted to deal with the IT Department from that point forward. Toward the end of 2014, management within the IT Department became concerned that Ms. Eagle’s position would be eliminated or that it would be permanently converted into a part-time position. Therefore, Ms. Eagle was asked to return to full-time status, and she did so on January 12, 2015. Upon her reinstatement to full-time status, Ms. Eagle’s assignments were no longer limited to issues that could be resolved in a short time frame. Ms. Eagle asserts that the past pattern of retaliation or disparate treatment continued after she returned to full-time status. According to Ms. Eagle, she only received 24 work orders for the entire year of 2015. Ms. Eagle resigned on October 2, 2015, and her resignation letter read as follows: Please accept this letter as my formal resignation from the Alachua County Information Service Department Network Specialist Position under the Network Team Division effective October 2, 2015. It has been a pleasure working with all of you the last 8 years and I wish everyone here the best in the years to come. I thank all of you once again for this opportunity and I give a special thanks to those who took the time to make this opportunity special for me. Specific Findings Regarding Ms. Eagle’s Allegations of Disparate Treatment and Retaliation In her filings with the Commission and during the course of the final hearing, Ms. Eagle made several allegations about how she was the victim of disparate treatment during her tenure with the IT Department. Furthermore, she alleges that the IT Department’s management retaliated against her when it learned that she had visited the EEO Office. The following findings specifically address each of those allegations. Ms. Eagle’s primary allegation is that the IT Department’s management did not assign her the type of work assignments that would further her professional development and prepare her for promotion to a network analyst position. In support of this allegation, Ms. Eagle asserted that Ian Van Kirk (who held the network specialist position prior to Ms. Eagle) had the opportunity to take the lead on projects and to work on servers. However, Mr. Vensamoye testified Mr. Van Kirk was always under supervision. Also, while conceding that Mr. Van Kirk worked on servers during his tenure as a network specialist, Mr. Vensamoye testified that the IT Department was short-handed at the time. In addition, Mr. Vensamoye reiterated that Mr. Van Kirk never made any final decisions. Ms. Eagle also alleged that the IT Department hampered her professional development by not assigning her complex tasks and by not inviting her to participate in an adequate number of high-level projects. When she was invited to participate on such projects, her participation was allegedly limited to observation with no “hands-on” work. While not expressly saying so, Ms. Eagle clearly implies that observing others working on high-level projects did nothing to further her knowledge and professional development. First of all, Ms. Eagle’s own testimony indicated that she had been assisting network analysts prior to her unsuccessful interview for a network analyst position. According to Ms. Eagle, that work and her other work within the IT Department adequately prepared her to assume a network analyst’s duties. Moreover, there was testimony indicating that Ms. Eagle was assigned projects that were far more involved than the help desk calls typically handled by a network specialist. Those projects were opportunities for professional development. For example, Jim Bledsoe (a network analyst within the IT Department) testified about a project in which the IT Department enabled county commission meetings to be streamed over the internet. Mr. Bledsoe was the leader of that project and asked for Ms. Eagle to be assigned to it because she had expressed a desire to participate in a highly visible assignment. During the course of this project, Ms. Eagle assisted Mr. Bledsoe and was able to watch him build a server. Ms. Eagle also assisted Mr. Bledsoe in connecting computers in the Alachua County Transfer Station to the County’s main network via a radio frequency link. Mr. Bledsoe also testified that Ms. Eagle was the point-of-contact between the IT Department and the Guardian ad Litem office. While the Guardian ad Litem Office was a small department in comparison to others, Ms. Eagle was completely responsible for that office’s information technology needs. Ms. Eagle had an open invitation to participate in any projects that interested her. Mr. Vensamoye testified that employees within the IT Department are encouraged to confer with more experienced co-workers and gain knowledge by assisting those co-workers with certain tasks. Chris Johnson testified that when he was a support technician, network analysts were very receptive to allowing him to watch or assist with projects. Testimony during the final hearing indicated that Ms. Eagle’s desire to improve her skills dramatically decreased at some point after she became a network specialist. For example, Mr. Bledsoe testified that Ms. Eagle unexpectedly left the transfer station project before it was completed, and Mr. Johnson testified that Ms. Eagle was talking on her phone during the entire duration of the project. Mr. Johnson also testified that he stopped asking Ms. Eagle if she wanted to accompany him on projects because she no longer seemed to be interested and was difficult to locate. Finally, Victor Paul (Ms. Eagle’s direct supervisor) testified that Ms. Eagle’s interest in learning new skills disappeared during her final two-and-a-half years in the IT Department. Also, the IT Department understandably avoided assigning Ms. Eagle complex assignments when she was working a part-time schedule. As noted above, the IT Department prides itself on providing a high level of customer service and wanted to avoid situations in which a client’s problem went unresolved simply because an IT Department employee could only devote a limited amount of time to the problem. Ms. Eagle also asserted that her professional development was hampered by the fact that she was not assigned to cover on-call support. Mr. Vensamoye persuasively testified that the IT Department was under strict budgetary constraints at the time in question. Because Ms. Eagle was an hourly employee who would have to be paid overtime, it was more economical for the IT Department to assign salaried employees to on-call duty. Ms. Eagle also alleges that Mr. Martinez was “groomed” for advancement and that a great deal of her network specialist work was improperly diverted away from her and to Mr. Martinez. This appears to be the primary basis for her repeated assertions that she was getting “no work.” Given that Mr. Martinez had worked in the IT Department for 17 years prior to earning his promotion to senior support technician, one can hardly say that the IT Department’s management had singled him out and was “grooming” him for promotion. Instead, the testimony indicates that Mr. Martinez made a conscious decision to volunteer for extra work and earn his promotion. In fact, Mr. Shore testified during the final hearing that Mr. Martinez “worked his ass off and he was there every day” during the time period at issue. In order to reach his goal of earning a promotion, Mr. Martinez was handling help desk calls that would normally be assigned to a network specialist such as Ms. Eagle. Therefore, he appears to have been filling a void that resulted from Ms. Eagle’s downtime following her accident and her subsequent part-time status. Furthermore, while Mr. Shore vigorously disputed any assertion that Ms. Eagle was not getting her fair share of work assignments, he testified that Ms. Eagle was difficult to locate in 2014 and 2015. Therefore, it is certainly understandable that certain assignments were shifted to Mr. Martinez when Ms. Eagle could not be located. Ms. Eagle also alleges that the IT Department’s management retaliated against her by subjecting her to increased monitoring, requiring her to obtain a security clearance, and by issuing the memorandum of understanding to her. Mr. Vensamoye and Mr. Paul testified that the same amount of monitoring was being applied to all of the IT Department’s employees. Ms. Eagle was not being singled out, and there was no evidence to the contrary. With regard to the security clearance, Victor Paul (Ms. Eagle’s direct supervisor) testified that obtaining such a clearance is something that must be done periodically. Therefore, asking her to do so was not an attempt at retaliation. Mr. Vensamoye testified that Ms. Eagle was taking an inordinate amount of time to complete assignments in the few months preceding the memorandum of understanding’s issuance. Also, it became difficult to find her during working hours and, when she was able to be located, she was often in the break room or talking on her telephone. Accordingly, the memorandum of understanding was an effort to address those issues rather than disciplinary action. Finally, Ms. Eagle alleges that she was subjected to disparate treatment when certain equipment was taken from her possession after the IT Department hired two network analysts in 2012. The equipment in question was related to the network analyst duties that Ms. Eagle was covering after the incumbent left the IT Department. Ms. Eagle was very upset when she was not hired for one of the network analyst positions, and the retrieval of the equipment appears to have been “salt in the wound.” However, after the two network analyst positions were filled, it was reasonable to expect that the persons hired would need that equipment. As discussed below in the Conclusions on Law section, Ms. Eagle was required to prove her allegations of disparate treatment and retaliation by a preponderance of the evidence. The greater weight of the evidence demonstrates that there was no disparate treatment or retaliation. Specifically, the greater weight of the evidence does not establish that Alachua County took any action which led to a serious and material change in the terms of Ms. Eagle’s employment.
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 Ms. Eagle’s Petition for Relief. DONE AND ENTERED this 25th day of August, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2016.
The Issue The issue for resolution is whether Petitioner is entitled to registration as a charitable organization pursuant to Section 496.405, F.S. An administrative complaint alleging violations of Section 496.405, F.S. was served at the same time as the agency's notice of registration denial. The time to respond to the complaint has not expired and the issues raised in that complaint are expressly reserved for another proceeding if requested by United Rainbow Foundation, Inc.
Findings Of Fact Petitioner, United Rainbow Foundation, Inc., (URF) is a Florida not- for-profit corporation with its principal office in Tarpon Springs, Pinellas County, Florida. Don Whittaker is a director and president of the corporation. URF was incorporated in Florida on March 24, 1992. No notice of any requirements for registration as a charitable organization was provided to URF or its attorney at the time that the corporate papers were sent by the Florida Department of State. Thereafter, URF set about acquiring various permits or registrations which it deemed were necessary in order to conduct solicitation of charitable contributions throughout the state. It registered with the City of Sarasota Better Business Council and with Dunn and Bradstreet; it obtained Florida Department of Transportation regulations regarding roadside solicitation; it applied for a Federal Employer Identification Number; it registered its fictitious name, "Children's Cancer Society" with the Department of State; it prepared and filed Internal Revenue Service form 1023, application for tax exempt status under IRC Section 501(c)(3). It also obtained, at various times, local occupational licenses and local permits to conduct charitable solicitations, and learned that certain other local jurisdictions did not require licensure. In the process of acquiring local approval, Dan Whittaker received a letter dated April 6, 1992 from the Pinellas County Department of Consumer Affairs and an application for that county's charitable solicitation permit. The April 6 letter includes this information: * * * As of January 1, 1992, the State of Florida also requires registration of most charitable groups, professional solicitors, and certain other groups. No group should begin or continue solicitation activity without contacting the Florida Division of Consumer Services for information; 800/435-7352 in Florida, 904/488-2221 outside Florida. A Pinellas County permit does not relieve any organization of its responsibility to comply with State law and is in addition to State requirements. While the County application form asks a question about State registration, State registration is not mandatory for County registration. While you are waiting for State information, do not delay your County application. (Respondent's Exhibit #2) As described by Dan Whittaker, URF actively conducted solicitation primarily in May and June, but also sometime in April in Bradenton, Florida. At various times, and in various cities in Florida, typical crews of four to twenty people worked traffic intersections with plastic jugs. Very briefly, for approximately 1 to 1 1/2 weeks in late June or early July, a telemarketing solicitation campaign was conducted, with seven or eight telephones active out of a total of fifteen available telephones. Sometime in late June, around June 26, 1992, a URF representative was in the office of the Dade County occupational license department. Mary Helen Shelton, a Consumer Services Consultant, Florida Department of Agriculture and Consumer Affairs, Division of Consumer Services, in Tallahassee received a telephone inquiry about URF from the local department. After checking the agency's computer file, Ms. Shelton informed the local staff person that URF was not registered. The URF representative then was put on the telephone and Ms. Shelton said she would send an application package. Within a few days, the package was sent. By the end of June, the agency was aware that URF was soliciting contributions. On June 29, 1992, Gregory Fox, television anchor and reporter with WESH in Orlando, called Tallahassee and spoke with Karen MacFarland, Director of the Division of Consumer Services. He told her that URF had been working in Orlando and elsewhere in the state and he asked whether the organization was registered. She told him that it was not. She learned from Ms. Shelton that an application packet had recently been sent. The application form was filled out by URF and was received back at the agency on July 10, 1992. Dan Whittaker immediately began calling to check on its status. Clyde Chandler, a staff person in the agency's registration program office had spoken with Dan Whittaker and URF's accountant early in July in response to their inquiries related to registration of a solicitor. When he got the July 10th call, he retrieved the application from the mailroom and informed Whittaker that it had arrived, but there was a backlog of mail and he could not look at it yet. On July 15th Dan Whittaker called again on the application status. Clyde Chandler told him the agency had information that URF had solicited before and they needed more information on their "financials", as the budget furnished with the application was incorrect. Chandler also asked Whittaker to furnish IRS tax exempt status information. Clyde Chandler did not put his request in writing, but the next day, July 16, Dan Whittaker appeared in person with URF's accountant in Mary Helen Shelton's office. She looked at the letter they gave her and she said it "looked OK" to her, but that Clyde was working on the file. They waited for Clyde Chandler to return from lunch and gave him the letter. He looked at it, but did not review it and said that the agency had ten days to process the papers. On July 17, Dan Whittaker called Clyde Chandler. Although the two witnesses disagree on the exact conversation, it is clear that Chandler conveyed that the information provided was complete and in compliance. Chandler admits that the information provided to him on the 16th satisfied him. Chandler gave Whittaker the agency file number for URF. Chandler said the papers were on Ms. Shelton's desk and would go out shortly. URF immediately began soliciting again, and gave out the agency file number as evidence of its registration. On July 30, 1992, a letter was sent by fax to URF's accountant, signed by Karen MacFarland, denying URF's registration, stating this reason: The Division of Consumer Services has evidence that United Rainbow Foundation/Children's Cancer Society has solicited contributions in violation of s. 496.405(1)(c) on several occasions. (Petitioner's exhibit #12) The agency also issued an administrative complaint seeking fines. Between January 1, 1992, when Section 496.405, F.S. took effect with the implementation responsibility in the Department of Agriculture and Consumer Services, and July 31, 1992, the agency has received 1843 applications for registration. Of such applications, 1581 have been found in compliance, 255 are pending, 5 were withdrawn, and 2 (including URF) were denied. To the knowledge of the agency staff who testified, no application for registration has been approved for an organization which conducted solicitations in violation of the law. The agency concedes that the application received on July 10, 1992 includes all of the information required by Section 496.405, F.S., with the exception of appropriate financial information. A one page budget for the year ending December 31, 1992 was attached to the completed form when it was received on July 10. The budget reflects gifts, grants and contributions totalling $1,125,000, and expenses totalling $828,896. From this, and from the evidence presented at hearing, it is impossible to determine how Mr. Chandler determined the budget was inaccurate. As of July 15, 1992, the agency already had notice of URF's pre- registration activities. It also had this admission from Dan Whittaker, included in the hand-delivered July 15th letter, that it knew of its legal responsibility at the time that it was soliciting: During the initial conference with our present accountant on May 28, 1992, he asked if we had met all Federal, state and local requirements re the solicitation of contributions. Since we thought, but were not certain whether all such requirements had been met, the accountant advised that we immediately cease soliciting contributions. Based on his advice, we stopped. On June 11, 1992, our accountant notified us that: IRS had not received Form 1023, Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code, allegedly submitted on May 5, 1992; and State and local requirements under the Solicitation of Contributions Act effective January 1, 1992 had not been satisfied. (Respondent's Exhibit #6, emphasis added) At no time prior to July 30 was URF informed, orally or in writing, that its registration would be denied. Nor was it told that any problem existed other than the additional "financials" sought by Clyde Chandler, which "financials", according to Chandler, were in order as of July 17. Chandler has the authority to approve registrations and has done so in other cases.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Division of Consumer Services enter its final order approving the registration of United Rainbow Foundation, Inc., by default, and without prejudice to the agency's right to pursue other administrative penalties pursuant to its authority in Section 496.419(4), F.S. DONE AND RECOMMENDED this 17th day of August, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of August, 1992. APPENDIX The following are specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in finding of fact, paragraph 1. Addressed in conclusion of law, paragraph 1. Adopted in part in paragraph 9. Respondent did initiate enforcement action with its complaint dated July 30. Adopted in paragraph 10. Adopted in paragraphs 11 and 19. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 15. Adopted in part in paragraphs 4 and 5, otherwise rejected as unnecessary. Rejected as irrelevant. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph 1. Adopted in paragraph 6. Adopted in substance in paragraphs 7 and 9, otherwise not relevant. Adopted in paragraph 10. Adopted in substance in paragraph 14, otherwise not relevant. Adopted in paragraph 11, as to needing additional information. The exact substance of the conversation was not proven. Adopted in paragraph 12. Adopted in paragraph 15. Adopted in part, as to the solicitations prior to July. Rejected as contrary to the facts and law as to any solicitations between July 18 and 30. The statement was orally approved on July 17 and was approved by default on July 24. COPIES FURNISHED: John P. Holsonback, Esquire 408 East Madison Tampa, Florida 33602 Robert G. Worley, Esquire Dept. of Agriculture and Consumer Services Mayo Bldg., Room 515 Tallahassee, Florida 32399-0800 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Section 120.57(1)(b)4. provides the right for parties to file exceptions to a recommended order. The 2-day deadline for final order in Section 496.405(7), may effectively negate that right. =================================================================
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 31st day of July, 2017.
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner.
Findings Of Fact Petitioner is an African-American female who was employed by Respondent from October 16, 2000, until her termination on January 4, 2011. When she began her employment with Respondent, she was hired as a Food Service Specialist. Respondent, MRMC-Munroe Regional Health Systems, Inc. (Munroe or Respondent), is an employer within the meaning of the Florida Civil Rights Act. Munroe is a not-for-profit hospital located in Ocala, Florida, and comprises numerous departments, including the Nutritional Services Department. Petitioner worked for this department the entirety of her employment with Respondent. On or about October 23, 2000, Petitioner received a copy of Munroe's Employee handbook. The Employee Handbook includes an Equal Opportunity policy, an anti-harassment policy, a complaint procedure, and an open door policy. Petitioner was aware from the beginning of her employment that Respondent had written policies prohibiting unlawful discrimination and that there were procedures in place to report work-related problems, in particular unlawful discrimination. Petitioner acknowledged in October 2000, that she received copies of these policies. She also signed an acknowledgment that she was an "at-will" employee, meaning that either the employee or Munroe has the right to terminate the employment relationship at any time with or without notice or reason. As early as 2000, Petitioner was aware that one way to report unlawful discrimination was to contact the Human Resources Department. In early 2004, Petitioner sought a promotion to the position of Team Leader. Melinda Monteith was one of Petitioner's immediate supervisors at that time. Ms. Monteith recommended Petitioner for the promotion to Team Leader. Petitioner was promoted to the position of Team Leader in February 2004, and received a pay raise commensurate with that position. Ms. Monteith continued to be Petitioner's immediate supervisor until January 4, 2011, when Petitioner was discharged. Petitioner received pay increases every year from 2004 through 2010. Petitioner's former husband, Michael Pearson, believes that Petitioner's supervisor is racist because he claims she once called him a "thug" and saw her look at another black male "like she don't like black folks."1/ Mr. Pearson has never worked for Respondent and bases his personal belief that Petitioner's supervisor is racist on interactions he had with Petitioner's supervisor(s) at holiday parties. On February 6, 2009, Petitioner was disciplined in the form of a written Counseling Agreement for conduct which Respondent considered "workplace bullying." Petitioner, along with other team leaders, was asked to learn to use a computer system referred to as the C-Board System, in order to fill in when necessary for employees whose assigned duties were to use that system to correctly prepare patient meals. Petitioner was never able to operate the C-Board system. She was never disciplined by Respondent for her inability to use the C-Board system. During the time that Petitioner held the position of Team Leader, some employees complained to Ms. Monteith about the way Petitioner interacted with them. On December 20, 2010, Stephanie Smith, another Team Leader, told Ms. Monteith that Petitioner was not speaking to people and being very "sharp" with them. The next morning, Ms. Monteith asked to speak with Petitioner about what Ms. Smith had told her about Petitioner's behavior the previous day. When Petitioner responded curtly, "Is it business?," Ms. Monteith decided to speak with her later. Later that morning, Ms. Monteith was approached by Pam Knight, one of Petitioner's subordinates, who was in tears regarding Petitioner's behavior and the resulting tense atmosphere. Ms. Knight was particularly concerned with the way Petitioner was treating Ms. Smith. Ms. Monteith and Clinical Nutrition Manager Betsy DeMatto met with Ms. Knight and confirmed what Ms. Knight had told Ms. Monteith earlier regarding Petitioner's behavior: that Petitioner was not speaking to Ms. Knight or Ms. Smith at all, and that she was not responding to work-related questions. Ms. Monteith and Ms. DeMatto decided that Petitioner should be counseled in writing for her unprofessional behavior toward coworkers. On December 21, 2010, Petitioner was disciplined, again in the form of a written Counseling Agreement, for "behaving in an unprofessional manner [which] creates an environment of tension and discomfort." When presented with the counseling agreement, Petitioner became very angry, remarked that everything she was accused of were lies, and refused to sign the counseling agreement. Later that day, Ms. Monteith was approached by Ms. Smith who was "very pale" and who advised that Petitioner spoke with her (Ms. Smith) following the counseling meeting, and appeared to be angry. Ms. Smith informed Ms. Monteith that Petitioner stated that she was "going postal" and that if she was "going out" she was taking Ms. Monteith with her. Ms. Monteith believed what Ms. Smith told her, and relayed it to Ms. DeMatto. Ms. Monteith and Ms. DeMatto decided to report this to Human Resources (HR) Manager Vicky Nelson. Ms. Nelson has been employed by Respondent for 33 years, five of which as HR Manager. In her capacity as HR Manager, Ms. Nelson has conducted approximately 300 investigations into workplace issues, including allegations of unlawful discrimination, harassment, threatening behavior, workplace violence, and bullying. These investigations included reviewing applicable policies and procedures, referring to any prior events of a similar nature, interviewing the complaining employee and the individual against whom the complaint has been made, and reviewing the personnel files of the individual making the complaint and the individual who is accused of inappropriate behavior. In some cases, a decision is made to remove the accused from the workplace during the pendency of the investigation. Ms. Nelson interviewed Ms. Monteith and Ms. DeMatto in her office. She observed that Ms. Monteith appeared to be "visibly shaken." On the afternoon of December 21, 2010, Petitioner was called into the office of Ms. Nelson to discuss the allegations that Petitioner made this threatening comment regarding Ms. Monteith. During the December 21, 2012, meeting, Petitioner initially denied making the statement about going postal and taking Ms. Monteith with her. She later admitted that she used the word "postal," but was just joking and was not serious. At hearing, Petitioner acknowledged that she used the word "postal," but in the context that they had her in the office "trying to make me postal" and reiterated that she was just kidding in using that word. Petitioner believes that she was being accused of acting "crazy." While there is some dispute as to the context of Petitioner's use of the word "postal," it is not disputed that she did use the word "postal" in the workplace, and that employees of Respondent were extremely concerned because of it. At the conclusion of the December 21, 2010, meeting, Ms. Nelson told Petitioner not to return to work until after she (Ms. Nelson) had finished the investigation if this matter. Ms. Nelson also asked Petitioner to submit a written statement setting forth her position as to the events of December 21, 2010. Petitioner did not submit a written statement at that time, but said she would do so later. On December 22, 2010, Ms. Nelson interviewed Ms. Smith and Ms. Knight, each of whom confirmed what Ms. Monteith previously told Ms. Nelson. Based on the information available to her, Ms. Nelson determined that Petitioner's employment should be terminated. Whether or not Petitioner was just joking when she used the word "postal," it was taken seriously by her employer. Ms. Nelson based the termination decision on Petitioner's use of the word "postal" and considered it inflammatory in nature. She based her decision in part on the comment itself; the credibility of Ms. Smith, Ms. Knight, Ms. DeMatto, and Ms. Monteith; her personal observations of Petitioner's behavior and demeanor in the December 21, 2010, meeting; and the context in which the comment was made, i.e., the information she received regarding Petitioner's interaction with co-workers on December 20 and 21, and her angry reaction to being presented with the counseling agreement on December 20. Ms. Nelson contacted Petitioner on January 3, 2011, and asked to meet with her the following day. On January 4, 2011, Ms. Nelson informed Petitioner of the results of her investigation and of the decision to terminate her employment, effective that day. At the January 4, 2011, meeting, Ms. Nelson again asked Petitioner for a written statement. Petitioner did not give one to her. On January 13, 2012, Petitioner filed a written request, pursuant to Respondent's Conflict Management Program, for peer review of the circumstances surrounding her termination from Munroe. The Panel Review Request Form lists several factors for the employee making the request to "check off" as to the nature of the dispute. Petitioner checked the boxes for "race" and for "retaliation, but did not check the box for "disability." At no time during the December 21 meeting with Ms. Nelson or the time between that meeting and the January 4, 2011, meeting, did Petitioner advise Ms. Nelson that she believed that she was being discriminated against on the basis of race, color, or disability. On February 23, 2011, the Peer Review Panel recommended that Petitioner's termination be upheld and that she not be eligible for rehire.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2012.
