The Issue Whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Kennedy is of the Mormon faith. Mr. Kennedy had worked for Trawick in the past. He renewed his employment with Trawick in September 2005. He was a laborer. Sometime around the middle of September 2005, Mr. Kennedy was assigned to a work crew, whose foreman was Andrew Cooper. Trawick Construction is involved in laying and maintaining communication cable. Trawick has a work yard in Chipley, Florida. In accomplishing its work Trawick erects poles, and strings and lays wires, including fiber-optic cable. The work crew in which Mr. Kennedy worked used a five-ton truck and a trencher. Shovels are also used. Mr. Cooper had worked with Mr. Kennedy when both were laborers for Trawick in 1998. Mr. Cooper advanced to the position of foreman, but Mr. Kennedy remained a laborer and sometime after 1998 left the employ of Trawick. Mr. Kennedy asserted that during working hours on September 26 and 27, 2007, Mr. Cooper talked roughly to him and was "bossy." During that time, the Lord came in a vision to Mr. Kennedy and told him that he needed to pray for Mr. Cooper, so that Mr. Cooper might become a more accommodating and gracious supervisor. Mr. Kennedy revealed to Mr. Cooper that he was praying for him, although Mr. Cooper did not recall hearing any prayers. On September 27, 2007, the crew was working at a site near Enterprise, Alabama. On that day Mr. Kennedy worked slowly and was insubordinate toward Mr. Cooper. When he was told to accomplish designated tasks, Mr. Kennedy informed Mr. Cooper as to whether he would, or would not do as instructed. Mr. Kennedy was disrespectful and insubordinate to Mr. Cooper, who found this behavior to be unacceptable. Mr. Cooper and his crew were late getting back to Chipley because of Mr. Kennedy's failure to participate in the crew's assigned work. On the return trip, apparently having given up on the efficacy of prayer, Mr. Kennedy instead cursed and ranted in the presence of Mr. Cooper. After their return to Chipley, Mr. Cooper prepared a disciplinary report in response to Mr. Kennedy's behavior. The report was presented to Mr. Kennedy and he was asked to sign it. He refused to sign the document Mr. Cooper prepared. Instead he said, "I quit." The next morning, Wednesday, September 28, 2007, Mr. Kennedy put his gear in the five ton truck as if his employment continued, but Mr. Cooper told him to remove it and reminded Mr. Kennedy that he had been fired. Mr. Cooper called Carlton Wells, a supervisor, who eventually arrived at the Trawick facility in Chipley. Mr. Wells could have reversed the termination. However, by the time he arrived, Mr. Kennedy had departed the Chipley work yard. Mr. Wells, by doing nothing, ratified the action of Mr. Cooper. Neither Mr. Cooper nor Mr. Wells was aware of Mr. Kennedy's religious affiliation. No one in the Trawick organization harassed Mr. Kennedy because he was a Mormon, because no one knew he was a Mormon. Accordingly, whatever the hostility of the work situation, it was not in any manner related to religion. The timesheet maintained by Mr. Cooper reflects that Mr. Kennedy was fired on Wednesday, September 28, 2005. It is found as a fact that Mr. Kennedy was fired on September 28, 2005. Trawick has quarterly "safety" meetings. Despite the nomenclature, Trawick uses these "safety" meetings to educate its workers on many subjects, including the company policy forbidding discrimination. Mr. Cooper has attended these meetings when Trawick's policy as to nondiscrimination was taught. As a result, Mr. Cooper is quite aware that Trawick does not tolerate discrimination based on sex, race, color, or religion. He understands that a failure to conform to Trawick's policy with regard to discrimination could result in his demotion. Religion was not a factor in Mr. Cooper's decision to terminate Mr. Kennedy. No one retaliated against Mr. Kennedy because he complained of discrimination based on his religion. In fact, the first complaint of discrimination made by Mr. Kennedy was when he complained to the Commission and by that time he was no longer employed by Trawick. Mr. Kennedy provided no evidence of harm, monetary or otherwise, during the hearing.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the complaint of Lee Dell Kennedy. DONE AND ENTERED this 12th day of May, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2008. COPIES FURNISHED: Mark J. Levine Levine & Associates, P.C. 4747 Bellaire Boulevard, Suite 500 Bellaire, Texas 77401 David Britain, Jr., Esquire Trawick Construction 1360 Post Oak Boulevard, Suite 2100 Houston, Texas 77056 Lee Dell Kennedy 747 Pecan Street Chipley, Florida 32428 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. Lester McFatter, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Jason C. Taylor, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner's termination from employment by Respondent on November 12, 2004, for Petitioner's refusal to take a DNA test to affirmatively establish the paternity of a child he wanted to add to his company-provided insurance coverage was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2004).
Findings Of Fact Petitioner was employed by Respondent from May 1998 until his termination on November 12, 2004. Petitioner had performed his duties adequately during his employment period and had no major disciplinary reports in his record. Petitioner was at the time of his termination from employment a single, divorced, white male, and he was living with his girlfriend, Shannon Mitchell. On September 28, 2004, Petitioner received a message while he was at work that his girlfriend had called and was in distress, purportedly suffering from back pains. Petitioner requested and was given permission to go home to attend to her. Upon arrival at home, Petitioner discovered that his girlfriend had in fact given birth to a child. Petitioner may or may not have known about the birth before he left work; his testimony on that issue was contradictory. Petitioner had only learned of his girlfriend's pregnancy about one week before the birth despite the fact they had lived together for almost a year. Petitioner notified Respondent about the birth the next day (September 29) in accordance with company policies. He also requested and was granted leave from work. The child was immediately added to Petitioner's health insurance coverage in accordance with Respondent's normal practice. Even though Respondent added the child to Petitioner's family insurance coverage, there were several concerns about the unusual circumstances surrounding Petitioner's reporting of the birth, to wit: That he didn't tell his employer about the birth when he left to go home that day even though he likely knew it had occurred; that he represented a lack of knowledge about the pregnancy even though he was living with the child's mother; that the hospital records did not list Petitioner as the father. Respondent's insurance plan is self-funded and is administered directly by management of the company. Each employee's cost of insurance is determined by the prior year's costs and expenses. The company pays about 99.5 percent of the employee's cost; the employee pays the remainder plus the cost of coverage for family members. Proper administration of the health plan is therefore important to both management and employees alike. Respondent employs over 250 people. The employee handbook is silent on the degree or kind of proof necessary to establish paternity of a child for insurance purposes. Neither Respondent nor its insurance program has an established policy requiring employees to obtain a paternity test in order to prove relationship to their child. There is no prohibition against an unmarried person adding his or her child and, in fact, the company has provided benefits for such children. It is not common for Respondent to ask an employee to submit to a DNA examination in order to establish paternity for insurance coverage purposes. The only other time such a test had been required was for an unmarried male employee who was not able to provide a birth certificate for his child showing he was the father. That situation, like the present matter, had certain unusual facts associated with it. While working for the company during the years of 1998 to 2003, Petitioner was married. During that time he and his wife had two children, both of whom were added to his family insurance coverage. He was not required to provide proof of paternity for those children other than a birth certificate. Based upon the unusual circumstances regarding Petitioner's reporting of his most recent child's birth, Respondent demanded further proof of paternity. On October 12, 2004, Respondent's human resources director, Sandra Ho, asked Petitioner to have a DNA test performed and to provide Respondent with the results on or before November 12, 2004. Respondent did not offer to pay for the required test. Petitioner acknowledged receipt of this demand from his employer which included an ultimatum regarding his continued employment should he fail to comply. In response to the request for proof of paternity, Petitioner provided Respondent a Social Security document for the child and a hospital discharge notice for Shannon Mitchell. Neither of these documents listed Petitioner as the child's father. On or about November 10, 2004 (two days prior to the DNA test deadline), Petitioner provided Respondent with a copy of the child's birth certificate listing him as the father. He had filled out "paperwork" at the hospital to obtain the birth certificate. There was no evidence in the record as to what the paperwork entailed. Respondent had accepted birth certificates as proof of paternity for other employees. Petitioner did not obtain or provide to Respondent a DNA test result. In fact, he did not make any effort to obtain such a test. He did discuss with Respondent his concerns about the costs of such a test. Based upon Petitioner's refusal to comply with his employer's directives, he was terminated from employment on November 15, 2004, effective November 12, 2004. The basis for termination was Petitioner's insubordination and refusal to follow the orders of his employer. Petitioner supervised approximately six people on a regular basis. Respondent was concerned about Petitioner's continued ability to properly supervise others while he was refusing to cooperate with management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of July, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 July, 2006.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex/gender, race, religion or disability.
Findings Of Fact Respondent operates a chain of retail stores/service stations, some of which include a deli. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). Petitioner is an African-American female. She began working for Respondent sometime in 2006. In January 2008, Petitioner's job responsibilities included cleaning and stocking shelves during the night shift at Respondent's store located on Cervantes Street, Pensacola, Florida. The Cervantes store did not have a deli. Alvin Philyaw, a white male, was the manager at the Cervantes store. Bill Fuller, a white male, was the store's assistant manager. Robert Wensel, another white employee at the Cervantes store, took care of the trash. On or about January 2, 2008, Petitioner and Mr. Wensel were in the store’s cooler. Petitioner was unloading a shopping cart when Mr. Wensel, who was subject to panic attacks, fell towards Petitioner. Petitioner reached with one arm to catch Mr. Wensel. After the incident, Petitioner returned to work. On or about January 15, 2008, Petitioner told Mr. Fuller that she had injured her shoulder when Mr. Wensel fell on her. Mr. Fuller told Petitioner to discuss it with Mr. Philyaw. Petitioner then talked to Mr. Philyaw. He told Petitioner that, pursuant to store policy, she should have immediately reported the accident. After finding nothing on the video tape about the fall, Mr. Philyaw told Petitioner and Mr. Wensel to file written reports about the accident. The injury was eventually treated pursuant to Florida’s workers’ compensation law. Petitioner subsequently filed a formal workers' compensation grievance about her dissatisfaction with the medical care she received for her alleged shoulder injury. Petitioner claimed that the accident involving Mr. Wensel occurred as a result of a satanic spell cast on Petitioner by one of her co-workers. This claim was not established by the evidence in this case and was found not credible in Petitioner’s earlier action against Circle K. Petitioner did testify about her doctor’s evaluation and treatment of her arm/shoulder. However, even with this testimony, the evidence in this case did not establish that Petitioner suffered any significant impairment that would constitute a disability/handicap under Chapter 760, Florida Statute. Around January 18, 2008, Mr. Philyaw learned that the Cervantes store was losing employee hours. Mr. Philyaw asked Petitioner if she would like to transfer to the store on Bayfront Street, Pensacola, Florida, where she could get more hours, work in the deli, and keep her benefits. Petitioner agreed. Petitioner went to Respondent's main office to speak with Jackie Ridgeway. Petitioner requested the transfer to the full-time position in the Bayfront store's deli. At the Bayfront store, Petitioner worked in the deli with Amy Williams, a white female, and Channel Pritchett, a black female. Ms. Williams was the deli supervisor. Ms. Pritchett was the deli cook. Petitioner’s duties included cleaning and waiting on customers. Ms. Williams did not know about Petitioner's alleged shoulder injury. One day at the Bayfront store, a cooking pan fell and hit Petitioner in the face. Petitioner's glasses were broken when the pan fell. The incident was an accident and not the result of witchcraft or any malicious intent. Again, there was no evidence of any discrimination based on race, religion or disability. Petitioner and Ms. Pritchett also worked together in the deli at the store in Cantonment, Florida. Felicia Williamson, who is also African-American, was Petitioner's manager/supervisor. While at the Cantonment store, a black customer asked Petitioner if she was Muslim and would she marry a Muslim man. There was nothing in this conversation or the evidence that indicated Circle K was involved in this man’s inquiries. Likewise, there was nothing in this conversation or the evidence that demonstrated any discrimination by Circle K based on Petitioner’s race, religion or disability. After working at the Cantonment store, Petitioner was transferred to the deli at the store on Barrancas Street, Pensacola, Florida. One day around October 30, 2008, a piece of sandwich paper caught fire under the steam box. Petitioner reached in with tongs, picked up the paper, and put the fire out in the deli sink. Petitioner was slightly burned by the fire, but continued to work her shift. Petitioner’s burns eventually healed. Again, the evidence demonstrated that this incident was an accident. However, the evidence did not demonstrate that this incident resulted in any significant injury to Petitioner or that her injury constituted a disability/handicap under Chapter 760, Florida Statutes. At some point, Petitioner returned to the Cantonment store. Petitioner alleged that around November 6, 2008, Ms. Williamson fired Petitioner for moving too slowly. Ms. Williamson claims she did not terminate Petitioner, but that Petitioner walked out of the store and did not return. Petitioner admitted that Ms. Williamson was dissatisfied with Petitioner's work performance. However, there was no substantial evidence to determine whether Petitioner was terminated or whether she quit. Likewise, there was no substantial evidence to determine the reason for Petitioner separating from her employment. Petitioner attributed her termination to the fact that Ms. Williamson was mean and abusive. However, Petitioner also testified that Ms. Williamson was “mean and abusive” to everyone. This evidence is insufficient to demonstrate any discrimination on the part of Ms. Williamson or Circle K. Given these facts, the evidence did not demonstrate that Petitioner was physically handicapped/disabled or suffered an adverse employment action because of her race, religion or disability. For the same reasons, the evidence did not demonstrate that Petitioner was retaliated against based on her earlier action against Circle K. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 2nd day of September, 2010, in Tallahassee, Leon County, Florida. S S. Diane Cleavinger Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September 2010. COPIES FURNISHED: Carolyn Johnson Post Office Box 4671 Pensacola, Florida 32507 Joyce Clemmons Circle K 25 West Cedar Street, Suite 100 Pensacola, Florida 32502 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 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner, a Caucasian male, was born on March 23, 1949. At the time of the alleged unlawful employment practice at issue in this case, Petitioner was 52-53 years old. Petitioner was employed by Respondent since 1973. He was terminated effective August 15, 2001. Respondent, at all times material to this case, is an employer within the meaning of the Florida Civil Rights Act. Respondent, at all relevant times, is in the business of providing telephone services to individuals and businesses in south Florida and elsewhere. At all relevant times, Petitioner was employed as a Service Technician. Service Technicians are responsible to install and repair telephone equipment in response to customer requests. At all relevant times, Respondent employs individuals as Service Technicians who are older than Petitioner. Many other individuals employed as Service Technicians are over the age of 40 at all times relevant to this case. Beginning in 1997, Respondent began to evaluate its Service Technicians according to a system called "Integrated Technicians Performance Plan [ITP].” The purpose of ITP was to improve customer service by evaluating Service Technicians and the individuals who manage them, on a regional basis, in accordance with standardized performance measures. Service Technicians whose ITP evaluations revealed deficiencies, including Petitioner, were provided assistance pursuant to individualized Technician Development Plans (TDP) and given a reasonable period of time to improve. From the time ITP was implemented in 1997, Petitioner was at all relevant times on a TDP because of deficiencies in his job performance. Petitioner's job performance was consistently deficient from 1997 throughout the remainder of his employment. From 1997 throughout the remainder of his employment Petitioner was provided assistance to help him improve his performance. Despite the assistance provided, Petitioner failed to improve his job performance to minimum levels required of all Service Technicians and required by his TDP. By August 2001, supervisors responsible for the training, evaluation and supervision of Service Technicians had determined that Petitioner did not maintain his job performance at the minimum levels required of Service Technicians and did not fulfill the requirements of his TDP. Accordingly, Respondent terminated Petitioner’s employment. Petitioner could have been terminated earlier than he was. In consideration of the fact that Petitioner had been a long-time employee of the company, he was given more time to improve his performance than company policy required. Petitioner presented no persuasive evidence that age played any role in Petitioner's termination. Petitioner did not prove that after he was terminated, a younger worker replaced him. Similarly, Petitioner presented no persuasive evidence that he is disabled within the meaning of the Florida Civil Rights Act, or that any disability played any role in his termination. Petitioner alleged his disabilities as “war wounds, tinnitus and hearing loss.” Petitioner never informed Respondent that he suffered from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Furthermore, Petitioner never informed Respondent that the disabilities alleged would in any way prevent him from performing his job as a Service Technician, or from satisfying the TDP developed to assist in ameliorating his performance deficiencies. Petitioner never informed Respondent that the alleged disabilities substantially impacted any major life function, or affected Petitioner’s ability to perform the essential functions of his Service Technician job. Respondent was not, at relevant times, on notice that Petitioner might suffer from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Respondent never perceived Petitioner to be disabled at times relevant to this case. During his employment as a Service Technician, Petitioner did not indicate a need for or make any request to Respondent for accommodations for any physical condition. Finally, Petitioner alleged that his termination was in retaliation for complaints he had filed in another forum. This allegation was not proved; rather, the evidence established that Petitioner never opposed any practice which is an unlawful employment practice under the Florida Civil Rights Act. In sum, the evidence established that Respondent discharged Petitioner solely on account of inadequate job performance as a Service Technician, and not on account of his age, disability, or in retaliation for complaints filed in another forum.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of October, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2005.
The Issue The issues in this case are: (1) Whether Petitioner filed her charge of discrimination with the Florida Commission on Human Relations within 365 days after the alleged discriminatory act; and (2) Whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of her national origin, gender, or pregnancy.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Olivera is a Cuban-American female. The City hired her, effective March 8, 1993, to work as a secretary in the City Manager’s office. After one week, Olivera was promoted to the position of Office Manager, a more demanding job that entailed much greater responsibilities. The evidence regarding Olivera’s performance as Office Manager is in conflict. Her supervisors believed that Olivera was a marginal employee who failed to discharge her duties satisfactorily. The City has placed in evidence a number of contemporaneous memorandums and other documents that memorialize one or another of Olivera’s perceived performance deficiencies. In contrast, Olivera believed she was performing well, and that her supervisors’ complaints about her were, for the most part, false, exaggerated, or unfair — and worse, a pretext for unlawful discrimination. (Olivera admitted that she had had problems with tardiness during her first year of employment, but all agreed that Olivera had corrected this particular deficiency.) In short, Olivera perceived that she had been singled out for disproportionately harsh treatment and had been made the scapegoat when others failed to do their jobs. More ominously, Olivera accused the City Manager, R.J. Intindola, of constantly having made racist comments about Blacks and Cubans. She claimed that Mr. Intindola uttered racial slurs with such frequency that the workplace became hostile. Further, Olivera asserted that her complaints about Mr. Intindola’s behavior fell on deaf ears. As with the issues pertaining to Olivera’s job performance, the evidence regarding Mr. Intindola’s conduct is in conflict. Mr. Intindola himself denied having uttered the slurs that Olivera put on his lips, yet he admitted that “one time,” in Olivera’s presence, he had referred to another employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola claimed that everyone present knew that he was kidding and laughed at the repartee between him and Ms. Dominguez. No one who testified at hearing corroborated Olivera’s account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who has been employed with the City since May 1974, disclaimed having witnessed any discriminatory behavior in the workplace there, despite having been the subject of the one possibly derogatory comment that Mr. Intindola indisputably made. On or around April 24, 1995, Olivera was asked to resign her employment with the City to avoid being fired, which would be the consequence of her refusal. Faced with this choice, Olivera submitted a letter of resignation dated April 24, 1995. Thereafter, she received severance pay equal to two-months’ salary. Some time later, most likely during the first few weeks of March 1996, Olivera filed both a Charge Questionnaire and an Affidavit (collectively, the "Federal Forms") with the United States Equal Employment Opportunity Commission ("EEOC"). In the Federal Forms, Olivera alleged that the City had discriminated against her, primarily on the basis of her national origin. The EEOC notified Olivera by letter dated March 22, 1996, that, because her charge had not been timely filed under Title VII of the Civil Rights Act of 1964, the commission had forwarded the Federal Forms to the FCHR. On May 6, 1996, according to a date stamp on the face of the document, the FCHR received a Charge of Discrimination that appears to have been signed by Olivera on April 14, 1996. In this Charge of Discrimination, Olivera again alleged that the City had discriminated against her on the basis of national origin, in violation of her rights under the Florida Human Rights Act. Ultimate Factual Determinations The evidence in this record is not sufficient for the trier to ascertain whether, as a matter of objective historical fact, Olivera adequately performed on the job or not. Suffice it say that a preponderance of evidence fails to establish anything except that Olivera, on the one hand, and her supervisors, on the other, sincerely believed the opinions they expressed on this subject. In other words, Olivera honestly believes that she performed competently and was discriminated against. Her supervisors at the City, in turn, honestly believe that Olivera did not measure up to the Office Manager’s position and needed to be let go for that legitimate reason and no others. The upshot of this inconclusiveness is that Olivera has failed to demonstrate, by a preponderance of evidence, that the City violated her civil rights. Olivera’s conviction that she was the victim of unlawful discrimination, no matter how sincerely and firmly held, is not proof of the fact, at least not without more than the evidence in this record establishes. By the same token, the evidence does not exactly exonerate the City, in the sense of proving that its hands were completely clean or that it acted honorably in respect of Olivera. Rather, more likely than not, Mr. Intindola did on occasion make offhand comments about Cubans at which some persons could take offense. A preponderance of evidence fails to show, however, that he uttered these remarks with a discriminatory intent; that Olivera (or anyone else) suffered any material harm or humiliation as a result of hearing them; or that he did so with such frequency or in such fashion that his conduct could be called extreme. In sum, while it is fair to infer, and the trier so finds, that Mr. Intindola was not always as sensitive to the feelings of others as, in hindsight, he probably should have been, there is nevertheless insufficient evidence to support a finding that he acted willfully or that Mr. Intindola’s occasionally insensitive behavior was so consistently and frequently repeated as to become a condition of Olivera’s employment with the City. Likewise, the greater weight of evidence fails to establish that the environment in which Olivera worked was a hostile or abusive one. On this record the trier cannot say that, more likely than not, the workplace was permeated with discriminatory intimidation, insult, and ridicule. Further, the evidence does not establish that Olivera was treated differently than similarly situated employees who were neither Cuban- American, female, nor pregnant. In the final analysis, then, considering the totality of the circumstances, the evidence presented at hearing demonstrates no more than that the City terminated the employment of an at-will employee for performance-related reasons unrelated to her national origin, gender, or medical condition (pregnancy).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Olivera's Petition for Relief. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 12th day of June, 2001.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, 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 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
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. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on January 26, 2010.
Findings Of Fact Petitioner is an African-American female who was employed by APD from July 2005 until her termination on or about June 5, 2009. At all times relevant to this proceeding, Petitioner was a member of the Select Exempt Service (SES), a category of employment with the State of Florida. Respondent, Agency for Persons with Disabilities (APD), is an employer within the meaning of the Florida Civil Rights Act. APD is a state agency responsible for, among other things, providing residential treatment, training, and behavioral care to vulnerable, developmentally disabled individuals in an institutional setting. Tacachale is an Intermediate Care facility for mentally retarded persons and it is located in Gainesville, Florida. Jasmine Home at Tacachale is a group home for nine developmentally disabled women with significant behavioral problems. The staff who work at Jasmine Home are expected to provide monitoring of the residents/clients to ensure their safety and well-being. Petitioner worked for Respondent as a Behavior Program Specialist Supervisor in Jasmine Home. As a supervisor, Ms. Mack's duties were to oversee the direct care of the residents in the group home. Part of a supervisor's duties is to ensure that proper behavioral techniques are followed. When a resident engages in a behavioral episode, certain behavioral intervention techniques are used to calm the resident. These techniques range from verbal redirection to physical management techniques. These may include techniques that safely place the resident in a prone position to ensure that the resident does not hurt herself or others. Staff members are trained in techniques to do this type of intervention safely without causing injury to the residents. On December 13, 2008, a resident in Jasmine Home engaged in behavior that required staff intervention. A staff person, Gloria Burkett, and a co-worker initiated a "take-down" of this resident. Petitioner came into the room to assist in this intervention. A staff member who observed this intervention called the Florida Abuse Hotline alleging the use of inappropriate intervention techniques by Petitioner and Ms. Burkett. This commenced an external investigation into these allegations. Concurrently, Tacachale began an internal investigation. During the pendency of the dual investigations, both Petitioner and Ms. Burkett were reassigned away from direct client contact. This reassignment is standard practice at Tacachale when a staff member is named as a possible perpetrator of abuse toward a resident. Sharon Taber is the Programs Operations Administrator who oversees the facility of which Jasmine House is a part. While Ms. Taber did not participate in the investigations, she reviewed the findings of both. According to Ms. Taber, there is no set time for the length of staff reassignments in these circumstances. The length of the staff reassignment is based upon the safety of the residents. The investigation took a long time and, consequently, Petitioner remained reassigned for a long time. The internal investigative report concluded that the resident was mistreated by Petitioner. Ms. Taber reviewed the investigative report and concurred with the report's conclusion that Petitioner participated in an inappropriate restraint on the Jasmine resident, and, therefore, mistreated the resident. Ms. Taber was also aware that the Florida Abuse Hotline concluded its investigation finding that there were "some indicators" of abuse. As a result of the findings of both investigations, Ms. Taber determined that Petitioner had implemented inappropriate intervention techniques which put the client/resident at risk in violation of APD policies and procedures. In reaching her determination and recommendation for disciplinary action, Ms. Taber also considered that Petitioner was a supervisor and that the agency "expects more" from supervisors. Ms. Taber made a referral to the Human Resources Department for disciplinary action. Her recommendation was termination of Petitioner's employment. By letter dated June 3, 2010, APD notified Petitioner that she was being dismissed from her position. The letter further informed Petitioner that as a Select Exempt Service employee, she served at the pleasure of the agency and was subject to termination at the discretion of the agency head. Consequently, Petitioner was not entitled to an employment hearing or grievance proceeding. Petitioner believes that her subordinates were hostile to her and that they were prejudiced in their viewpoints. By relying on the staff's statements regarding the incident, Petitioner believes that APD did not handle the investigation professionally. Although Petitioner was given the opportunity to write a statement to APD regarding the incident and did write a statement, Petitioner believes she should have been interviewed during the investigation. Petitioner concluded that because APD did not handle the investigation the way Petitioner believes it should have been handled, that she was discriminated against because of her race.
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 finding that the Agency for Persons with Disabilities is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 28th day of December, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010.
The Issue With regard to DOAH Case No. 98-5090 (FCHR Case No. 95- 5752), the issue is: Whether Respondent violated the Florida Civil Rights Act of 1992, by failing to select Petitioner for the position of environmental manager in the Fall of 1994 because of his age or gender. With regard to DOAH Case No. 98-3611 (FCHR Case No. 96- 1298), the issue is: Whether the Respondent violated the Florida Civil Rights Act of 1992 by retaliating against Petitioner by terminating him from his position because the Petitioner had filed a charge of discrimination with the Florida Commission on Human Relations (FCHR).
Findings Of Fact DOAH Case No. 98-5090 Discrimination Petitioner began his employment with Respondent in the Southwest District in Tampa on October 1, 1991, as an Engineer III with the air pollution program. He transferred to the Central District in Orlando, Florida, on June 3, 1994. Petitioner is an "employee" and Respondent is an "employer" under the statute. On or about September 26, 1994, Petitioner applied for the position of environmental manager in the Orlando Central District. At the time of his application, he had been with Respondent for almost two years but in the Orlando office for less than four months. Petitioner met the minimum qualifications for the position and is a male over 40 years of age. In September 1994, Alex Alexander was the director of the Central District and the hiring supervisor for the position of environmental manager. Alex Alexander conducted the interviews, decided who would be interviewed, and made the final decision regarding selection. He was assisted in the selection process by James Bradner, who had formerly occupied the environmental manager position. Bradner was an Engineer IV. The previous engineering position was reclassified to environmental manager, prior to advertising it, to eliminate the engineering functions. Alexander was seeking someone who could act as assistant to the director in environmental matters and to represent him on various matters before public and governmental bodies. Alexander determined that it was essential that the candidate have experience in a wide variety of Respondent's regulated programs, as well as with public presentations in dealing with Florida legislators and local government officials, and negotiating and managing Respondent's contracts. In 1994, Alexander was 69 years of age. From the evidence, it appears Alexander had no predisposition as to the age or gender of the selected candidate. He would have preferred a mature candidate if he could have found one who met all of the other requirements. There were 13 applicants for the position of environmental manager of whom nine, including Petitioner, met the minimum qualifications for the position. Four applicants were selected by Alexander to be interviewed, including three females and one male, all under 40 years of age. None of the three male applicants over the age of 40, who met the minimum qualifications for the position, were interviewed. In September 1994, T. Patrick Price was the operations manager for the Central District and his duties included serving as personnel liaison between the Central District and the Bureau of Personnel Services in Tallahassee. As a practical matter, Price's assistant, Minnie Yates, performed most of the clerical functions associated with personnel matters including recruitment and the preparation of recruitment and hiring packages. Price and the selectee, Ruth McLemore, had a "live-in, domestic relationship." They subsequently wed and were married at the time of hearing. Petitioner failed to show that Price was in a position to influence the selection of McLemore, either directly or indirectly. Price removed himself in the early stages from the selection process, when he learned that McLemore had applied for the environmental manager position. Furthermore, had Price not removed himself from the selection process, his role would have been limited to reviewing the applications to determine which applicants possessed the minimum qualifications for the position, and later ensuring that the selected applicant was among the most qualified applicants. The greater weight of evidence did not support the assertion that Price was in a position to influence directly or indirectly, the outcome of the selection process or which candidates were selected for interview. In September 1994, Petitioner had over 20 years of experience as an engineer at the United States Naval Shipyard in Portsmouth, New Hampshire. However, his experience with programs regulated by Respondent was limited to one year with an Orlando company involving domestic waste, approximately 20 months with the air program in Tampa, and less than four months with the industrial wastewater program in Orlando. Petitioner testified that he had dealt with legislators and their aides in New Hampshire and Maine but offered no proof of experience with the Florida Legislature. Petitioner testified that he did not have experience with or knowledge of Respondent's contracting procedures. While Petitioner testified that he had experience in making public presentations in New Hampshire, and in writing reports in the Southwest District, he failed to attach any writing samples or examples of relevant public presentations to his application. The selected applicant, Ruth McLemore-Price, f/k/a Ruth McLemore, is a white female under 40 years of age. In September 1994, she was an Environmental Specialist III in the Storage Tank program of the Division of Waste Management in the Central District of Respondent. From 1987 to 1988, McLemore was a Biological Scientist I in the Environmental Health Section of the Department of Health and Rehabilitative Services. She was hired by Respondent in 1988 as an Environmental Specialist I in the Domestic Wastewater Section. At the time of her application, she had over seven years of professional experience with environmental programs in Florida, including but not limited to: domestic wastewater, industrial wastewater, drinking water, storage tanks, hazardous waste, and solid waste. Additionally, her application includes examples of her numerous public presentations and writing samples. She had extensive contract experience including contracting with local governmental programs. Whereas Petitioner had more years of professional experience, McLemore's experience was more relevant to the position of environmental manager and better met the required knowledge skills and abilities required of the position. Petitioner was unable to produce any proof of his assertion that the group of applicants interviewed must be in statistical parity with protected groups within the District or within Respondent. Rather, the evidence showed that there is no such requirement. Likewise, there was no evidence that merely meeting the minimum qualifications of a position requires that the candidate be interviewed, and the evidence demonstrated this not to be the case. Petitioner failed to prove that Respondent classified applicants in such a way so as to discriminate against him due to his age and gender. The evidence showed that the classification of applicants by age, gender, and race was created after the selection process was completed in order to comply with Respondent's requirements, the Age Discrimination Act, and the Civil Rights Act. Further, there was no credible evidence that Respondent's actions were a pretext for discrimination, that the employment decision was grounded in discriminatory animus, or that a discriminatory reason motivated Respondent in its actions. DOAH Case No. 98-3611 In March 1995, following Alexander's retirement, Vivian Garfein became director of the Central District. Within a few days of her arrival, Petitioner approached her and lodged a complaint regarding his non-selection for the environmental manager position. Garfein looked into the matter, and subsequently, advised Petitioner that she found no irregularities in the selection process. Petitioner advised her that he was aware that he had formal remedies and on May 19, 1995, he filed his initial complaint with FCHR. Petitioner alleges that, within hours of complaining to Garfein, a course of retaliation commenced, perpetrated by his immediate supervisor Ali Kazi, which continued until, and was the cause of his resignation in December 1995. These acts included: In April 1995, Kazi returned Petitioner's April timesheet with instructions to complete and sign it before submitting it to his supervisor. Petitioner alleges that this was harassment because it was intended as a preliminary submittal and, therefore, was obviously incomplete. In November 1995, Petitioner alleges that Kazi conducted his performance evaluation and completed it within two minutes. The evaluation encouraged him to attempt to reduce his leave without pay. Petitioner asserted that all of his leave without pay was unavoidable and necessary; and, since he was the hardest worker in the District and kept his work up-to- date, Kazi had no basis for making such a recommendation. Petitioner further alleged that Kazi harassed and retaliated against him by forwarding an e-mail critical of Petitioner which Kazi had received from a supervisor in another program. The remaining incidents of alleged retaliation involve Kazi's refusal to allow Petitioner to make up leave days or requiring him to adjust his timesheet so as not to qualify for vacation pay in August and November 1995. The testimony showed, however, that the timesheet was submitted on the last day of the employee's work month, and it was entirely reasonable for his supervisor to assume that it was his final submittal. It was undisputed that Petitioner took substantial leave without pay (approximately 10 weeks between June 1 and November 7, 1995). This was reasonably perceived by Respondent to be excessive. Petitioner offered no evidence that a longer performance evaluation was in any way required. There was no evidence that Petitioner was ever counseled or otherwise disciplined as a result of the e-mail. Therefore, merely forwarding it could not be deemed as harassment or retaliation. The evidence showed Petitioner had accumulated excessive leave without pay. It was Respondent's policy to discourage excessive leave without pay. It was also undisputed that Kazi had the discretion to perform the acts alleged to be harassment. While it is true that Kazi's actions caused Petitioner to lose pay, the acts are permitted and justified by legitimate business reasons. Additionally, there was no credible evidence that Garfein or any other supervisor had instructed him to treat Petitioner any differently than any other employee.
Conclusions For Petitioner: Donald A. Garrepy, pro se Post Office Box 276 Portsmouth, New Hampshire 03802 For Respondent: Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Recommendation Based upon the foregoing facts and conclusions of law, it is hereby RECOMMENDED as follows: A final order be entered by FCHR dismissing with prejudice the petition of Donald A. Garrepy in DOAH Case No. 98- 5090 (FCHR Case No. 95-5752). A final order be entered by FCHR dismissing with prejudice the petition of Donald A. Garrepy in DOAH Case No. 98- 3611 (FCHR Case No. 96-1298). DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Donald A. Garrepy Post Office Box 276 Portsmouth, New Hampshire 03802 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
