The Issue Whether Respondent committed the alleged violations.
Findings Of Fact At the hearing of this case, the Petitioner's Motion that the request for admissions be deemed admitted was granted, resulting in the following facts being admitted: Waldron Produce of Citra, Florida, paid Respondent to supervise farmworkers harvesting peanuts on August 7, 1986. Respondent did not present to each farmworker he employed a notice of payment, showing the amount of compensation, number of hours worked, the rate of compensation, the name and federal identification number of legal employers of the farmworkers during the pay period, in detail, each and every deduction made from wages. Respondent did not retain for a period of three years an exact copy of each notice of payment form or a copy of the detachable part of the check, draft, or voucher that had been issued to each farmworker he employed. Respondent supervised a crew of farmworkers hand-harvesting peanuts approximately five miles east of Highway 301 on the north side of county road 319 in Marion County, Florida, on August 7, 1986. Respondent did not post his application for a certificate of registration at the work site of the farmworkers on August 7, 1986. Respondent did not post a working conditions statement at the work site of the farmworkers showing the rate of compensation the grower paid him and the rate of compensation he was paying the farmworkers on August 7, 1986. Respondent contracted with Waldron Produce for the employment and supervision of farmworkers without first displaying to Waldron Produce a current certificate of registration issued by the Bureau. In addition, the following facts are based upon evidence introduced at hearing: Respondent did not give wage statements to his workers. On August 20, 1986, Respondent met with CCCO Parker for a payroll audit. The audit revealed that Respondent was not giving wage statements to workers. Respondent did not make social security deductions and forward them to the social security administration. The audit revealed that Petitioner was not keeping the records by last name of each farmworker, or in a condition to facilitate inspection by the Bureau. (See testimony of Parker.) Respondent's records showed that he had paid Mr. Stanley Davy $77.00 for work during the week of August 4 through August 8, 1986. Mr. Davy received only half of the $77.00 and he worked approximately 11 to 12 hours per day. (See testimony of Davy.)
Recommendation Having found Respondent guilty of violating Sections 450.301, 450.33(7), 450.33(4)(a) and (b) , and 450.33(6), it is RECOMMENDED that Petitioner issue a Final Order imposing an administrative fine of $2,500 against Respondent. DONE and ORDERED this 5th day of March, 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Nathaniel Manns, Jr. Route 4, Box 4852 Citra, Florida 32627 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or 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 finding: that Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
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
The Issue Whether the Department may revoke and/or refuse to renew Mr. Moore's Certificate?
Findings Of Fact During 1982, 1983, 1984, part of 1985 and 1986, Mr. Moore acted as a farm labor contractor as those terms are defined in Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code. Mr. Moore also acted as a crew leader as defined in Section 443.036(12), Florida Statutes, with a crew of approximately 16 to 20 farm workers. During 1982 through 1986 Mr. Moore failed to file quarterly unemployment compensation tax reports with the Department. When questioned by the Department about why he was not filing quarterly reports Mr. Moore would begin filing them. He would not continue filing them, however, and he paid no taxes due with the reports he filed. During 1982 through 1986 Mr. Moore failed to pay unemployment compensation taxes which totalled $6,831.27, including penalties, interest and filing fees, as of February 1, 1988. This amount will increase every month after January, 1988, that the debt is not paid because of the accrual of interest. By letter dated August 18, 1987, the Department gave Mr. Moore notice that it intended to revoke his Certificate. By letter dated December 16, 1987, the Department gave Mr. Moore notice that it intended to refuse to renew the Certificate. The Department gave Mr. Moore an opportunity to explain why he should be allowed to retain his Certificate. The Department also attempted to work with Mr. Moore to give him an opportunity to pay the delinquent taxes. At least two representatives of the Department have discussed the payment of delinquent taxes with Mr. Moore in the past. Mr. Moore would agree to make payments to the Department as a result of these discussions. For a while Mr. Moore would make payments. Within a short period of time after beginning payments, Mr. Moore would stop.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order revoking and refusing to renew Mr. Moore's Certificate. DONE and ENTERED this 22nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, ROOM 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399-0658 ROBERT L. MOORE P. O. BOX 61 HASTINGS, FLORIDA 32045 ROD WILLIS, BUREAU CHIEF BUREAU OF AGRICULTURAL PROGRAMS P. O. BOX 1698 TALLAHASSEE, FLORIDA 32302-1698 HUGO MENENDEZ, SECRETARY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152 KENNETH HART GENERAL COUNSEL 131 MONTGOMERY BUILDING 2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
Findings Of Fact Respondent is a registered farm labor contractor whose Social Security number is 419-50-8742 and who has been issued certificate number 02949. At all times material hereto, Respondent failed to possess, for a period of three years, proof of payment showing the nature and amount of each payment made on behalf of each farmworker for whom he acted as a farm labor contractor. The records which Respondent failed to maintain included payments for social security, income tax withholdings, and payments for transportation and food. When Respondent made payments of wages to farmworkers for whom he acted as a farm labor contractor in June, 1986, he failed to furnish the workers any itemized statement in writing showing in detail each and every deduction made from their wages.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $500.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32399-2152 Joe Louis Rivers Route 3, Snell Street Wauchula, Florida 33873 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2151
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.
Findings Of Fact Respondent is Cumbie Concrete Construction Company. B. T. Cumbie has been Respondent's president since the company's inception in 1978. Prior to economic difficulties which caused Respondent to cease most business activities in September of 1991, Respondent employed as many as 150 persons, had a fleet of approximately 129 vehicles and construction equipment valued in excess of two million dollars. Respondent was significantly affected by the economic recession in 1990 and 1991. In the latter part of 1990, Respondent was experiencing a major slowdown in work and began cutting back work crews and slowly going out of business. At the beginning of September, 1991, Respondent effectively ceased all operations, dismissed all employees and sold all equipment. The business was then started again, doing just basic concrete work as opposed to previous large-scale projects. This renewal of Respondent's business activities began approximately in May of 1992, although some small finishing up of prior jobs had been done prior to that time. Personal principles of Respondent's president led to this direction of the company, as opposed to the filing of bankruptcy by the company. Petitioner could have had no reasonable expectation of employment after September 6, 1991, when all other employees, inclusive of corporate officers, were dismissed. Respondent has employed hundreds of employees since its inception. At any given time, 50 percent of the employees have been black. Employees have routinely been assigned to multiracial crews based upon skills of employees and needs of the particular work crew. Respondent has never had a charge of discrimination levied against it. Petitioner, Henry L. Thomas is black. He was employed by Respondent as a concrete finisher at a rate of $7.00 per hour from May 4, 1989, until his discharge on January 9, 1991. Considered an apprentice finisher in terms of skill level, he never applied for the position of supervisor or foreman with Respondent. Petitioner has never felt any instance of discrimination during his 20 months of employment, other than the incident which forms the basis of this proceeding. No other concrete finishers were hired by Respondent from the time of Petitioner's dismissal and the September, 1991 cessation of business. On January 9, 1991, Alex Smith was the project manager for Respondent's project at a mushroom plant in Gadsden County, Florida. Smith learned from the representative for the overall project's general contractor, Johan Bult, that two of Respondent's employees were allegedly selling drugs at the job site and that the general contractor wanted those employees removed from the premises or the sheriff would be called. The two employees in question were Petitioner and a white individual known as Donald "Chip" Hines. Hines was employed by Respondent on June 8, 1990, as a laborer at the rate of $5.00 per hour. Prior to January 9, 1991, Hines' work record reflects no documented incidences of tardiness and only three absences, all of which were excused. He was not the subject of complaints by any past or present foreman employed by Respondent. By way of contrast with Hines' work record, Petitioner was absent 19 times in the space of 20 months employment with Respondent. Petitioner was on probation in the state of Georgia from his conviction as an habitual offender at the time he began his employment. Petitioner's assertion that all of his absences were related to his need to report to his probation officer in Georgia is not credited in view of the multiple absences reflected in work attendance records for some months and virtually no absences in other months. Petitioner also asserts that he never failed to come to work without first calling by telephone and checking in with Respondent's offices. However, the work records list two absences, October 21, 1989, and May 29, 1990, as having occurred without permission and without Petitioner having checked in with his employer. Two absentee reports note that Petitioner was also absent on two occasions due to car trouble, contrary to Petitioner's assertion that he was never absent for these reasons. Petitioner was frequently provided transportation to and from job sites in the course of his employment by foremen and others employed by Respondent. Only one absentee report reflects Petitioner's absence from work for matters connected with the judicial system. With regard to Petitioner's judicial probationary status, Respondent provided a letter to Petitioner's probationary officer on January 13, 1990, certifying Petitioner's employment. Smith checked with Respondent's office regarding Bult's complaint and was told to lay the two employees off. Smith spoke with Petitioner and told him about the complaint and the directive to lay the men off. Smith instructed the foreman at the site to call Hines, who had taken the day off, and inform him. Smith then provided Petitioner with a ride back to Respondent's office where Petitioner's car was located. Enroute, Petitioner denied that he had sold any drugs at the Quincy Farms site. While Petitioner now contends that Hines was selling drugs and that he personally observed him selling drugs, he did not provide that information to Respondent's supervisory personnel at the time of the two men's dismissal from employment. Respondent's president specifically made the decision to terminate the two men's employment since they could not be returned to that job site. In conjunction with that termination action, he also attempted placement of both men with other work crews. He did not force their employment on any foreman who was reticent to cooperate since to do so would, in his opinion, destroy the team function of a crew and create even bigger problems for Respondent. While in Respondent's employment, Petitioner worked for a foreman named Lloyd Cruce who, Petitioner maintained at final hearing, never made any comments about his absenteeism, tardiness or his "mouth". Petitioner's testimony on this point is not credited in view of the direct and candid testimony of Cruce, who no longer works for Cumbie Concrete, to the effect that he had repeated problems with Petitioner's absenteeism and attitude, noting that for the period March 6 to May 1, 1990, Petitioner was absent eight separate times. As a consequence, Cruce submitted papers to Respondent's president requesting the firing of Petitioner for his absenteeism and attitude. Respondent's president elected at that time to place Petitioner with another crew. After the employment termination of Hines and Petitioner, Smith assisted the efforts of Respondent's president to place the two men with Respondent work crews on other jobs by also checking with foremen regarding possible placement. Smith spoke with Tommy Simkins, Randy Langston and may have talked with Bill Chason. Randy Langston advised Smith that since he had a forming crew which involved skilled carpenters, he was not interested in taking Donald Hines because he was a laborer and lacked necessary skills for his crew. Langston did not want Petitioner on his crew because Petitioner's lack of necessary skills, his inability to get along with people and his use of inappropriate language would cause problems for his crew. As noted by Langston, Petitioner was quite vocal and it was a "hassle" to get Petitioner to do anything. Langston was familiar with both Donald Hines and Petitioner as his crew has previously supplemented their crew for a time at Quincy Farms. Tommy Simpkins accepted Donald Hines on his crew. Two other laborers, David Martinez, an Hispanic, was transferred to the Quincy Farms crew and Lonzo Murray, a black or African-American, was temporarily transferred to that crew. Simpkins had more workers on his crew than he needed and did not need a concrete finisher on his crew. He also noted past problems with Petitioner being late to work and having difficulty with obtaining transportation to the job site. Even though Simpkins had made him a lead worker on occasion in the past, Petitioner had a hard time getting along with other people. Following an argument between Petitioner and a Respondent project manager, Steve Griffin, a job site on May 31, 1990, Petitioner was sent home because of the noticeable smell of alcohol on his breath. Petitioner had been late reporting to work on that day, not showing up until approximately 10:00 a.m., and then was sent home at 12:30 p.m., following the argument with Griffin. Petitioner's assertion that he went home sick that day after working all morning is not credited in view of alcohol smell observed on his breath by Tommy Simpkins and the fact that he was paid for only two and one-half hours of work on May 31, 1990, contrary to his claim of being paid for one-half day. Petitioner's assertion that Simpkins, following Petitioner's dismissal from employment, denied writing Petitioner up for having alcohol on his breath is not credited in view Simpkins' testimony that he did, in fact, write Petitioner up for that incident and that he had smelled the alcohol on his breath. Simpkins, in a confrontation with Petitioner after the employment termination action, did tell Petitioner he couldn't recall the incident. Simpkins explained that he did this because Petitioner was in a highly agitated state at the time, hollering at him in the garage area of Respondent's facility about the incident and that he, Simpkins, did not understand what Petitioner was talking about. The record of the incident, the absentee report, unquestionably bears Simpkins' signature which he has never denied affixing to the report. In view of the demeanor and candor of the two men while testifying, Simpkins' version of the incident is clearly more creditable and consistent with the evidence. Respondent's president spoke with both Bill Chason and Steve Griffin, whose crews used finishers and laborers, relative to placing Donald Hines and Petitioner. He learned that both Chason and Griffin had had prior problems with Petitioner and did not want him on their crews. The testimony of Chason, a Respondent foreman, establishes that Petitioner created trouble and started arguments between crew members when those crews needed to operate as a team. Petitioner had a specific disagreement with Chason concerning Petitioner's refusal to run a vibrator machine at a McDonald's job site. Chason talked with Petitioner on several occasions about his attitude. When asked by both Alex Smith and Respondent's president about putting Petitioner on his crew, Chason stated he didn't want Petitioner because his attitude caused too much trouble. Chason's testimony was reiterated in similar form by others who had observed Petitioner at work. Smith observed Petitioner while working at Quincy Farms and questioned his demeanor, noting he would get angry and agitated quite easily. Langston similarly testified as did Simpkins who noted that Petitioner always had difficulty getting along with other crew members. Lloyd Cruce noted that Petitioner had an attitude problem at work. Past and present foremen employed by Respondent noted that they never observed any discrimination being practiced nor race entering into employment or employee decisions. As previously noted, even Petitioner acknowledged that with the exception of the specific incident which is the subject of these proceedings, he had never experienced any discrimination while working for Respondent nor felt he was treated badly. Petitioner presented the testimony of his friend and former roommate, John Randle, who worked as a laborer for Respondent from August of 1989 to November of 1990, for the proposition that Bill Chason had once stated that he wanted Petitioner to work for him on his crew. Randle asserted that he worked with Petitioner, by virtue of temporary assignment to the crew on which Petitioner worked, three or four times a month for approximately seven months. Chason, however, noted that Mr. Randle worked on his crew on a permanent basis the entire time he was employed by Respondent and was not temporarily assigned to a crew three or four times a month for seven months. Chason further denied Randle's averment that he, Chason, had stated at the Quincy Farms site that he wanted Petitioner on his crew. The testimony of Randle is not credited in view of his demeanor while testifying and the inconsistency of that testimony with testimony of Chason, Simpkins and other individuals. Respondent did not have a sophisticated personnel office with persons assigned the job of creating and keeping records. Further, the nature of the work performed by Respondent's crews is such that foremen are often at a specific location of activity at the job site, away from their company vehicles where their paperwork would be kept. As a consequence, they often do not write up infractions such as tardiness. In Petitioner's situation, for example, he was absent without permission on October 21, 1989, a fact noted on his time sheet, but the required absentee report was never filled out by the foreman. Petitioner conceded to being late to work on occasion. In the Tallahassee area there is a significant problem with obtaining workers. Replacing a worker is difficult, particularly in light of the delay occasioned by finding a qualified replacement worker. Construction projects all have built-in dollar penalties for failure to complete a job on time. A construction company is better served by keeping someone if there is any way of doing it, rather than simply dismissing an employee. As a result, the requirement of Respondent's employee manual specifying dismissal after three absences was not enforced during Petitioner's tenure. Respondent's dismissal of Petitioner has not evolved over time. As established by the proof presented at hearing, Petitioner and Donald Hines were let go on January 9, 1991, because the company which employed Respondent to do work at the Quincy Farms mushroom plant effectively barred Petitioner and Donald Hines from that job site with the allegation of illicit activity by the two men and the threat to call the sheriff if they reappeared there. Further, the complaint against the two men came at a time when Respondent, already experiencing a critical cessation of project activity, could not afford to jeopardize retention of a vitally important project. The level of concern evidenced by Johan Bult's company is amply demonstrated by the fact that after the alleged drug selling incident, all construction workers were barred from the Quincy Farms employee lunch counter area. Respondent, with no specific proof that any drug transactions actually occurred at Quincy Farms, sought to place both persons on other crews. Respondent, throughout the process that ultimately resulted in the instant hearing, set forth the basic work record of Petitioner, including his absences, the May 31, 1990 incident and, contrary to Petitioner's assertion, the problems with his attitude. In a May 10, 1991, letter to the Florida Commission on Human Relations, Respondent clearly noted that Quincy Farms stated that Petitioner and Hines had been observed selling drugs on the job site, would not be able to work on their project and that both men were told to leave the job site and go home. Subsequently, the employment of each individual was reviewed and Petitioner's file revealed he had missed work on numerous occasions and had been reprimanded for coming to work with alcohol on his breath, while Hines' file revealed he had missed only three days in seven months of employment. The letter further notes that it was determined that it would be best that Petitioner not be placed with another crew "due to prior problems." Petitioner was not similarly situated to Donald Hines relative to position and work history. Hines commenced work for Respondent on or about June 8, 1990, and, prior to January 9, 1991, he had no incidences of tardiness, of alcohol being noted on his breath at work, of failure to report without permission, and no evident adverse work habits or problems on the job. Petitioner seeks damages of $13,000.75, an amount equal to his wages for calendar year 1990. Petitioner's employment with Respondent ended on January 9, 1991, and he concedes that everyone in Respondent's employ was dismissed in the beginning of September 1991. He drew unemployment compensation charged to Respondent from January 1991, to August of 1991, in quarterly amounts of $1,016.00, $1,524.00, and $762.00. Thereafter, Petitioner worked throughout all of August, 1991, to February, 1992, at $7.50 an hour for another employer. Then, from February of 1992, until a month prior to the final hearing, he drew unemployment compensation charged to that employer. He also conceded that shortly after February of 1992, he worked full time for a construction business for approximately six months at the rate of $8.00 per hour which was paid to him in cash, while he was drawing unemployment compensation.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of March, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of March, 1993. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-4. Accepted. 5. Rejected, not supported by weight of the evidence. 6.-8. Rejected, subordinate to HO findings. 9.-10. Adopted, though not verbatim. 11.-12. Rejected, not supported by weight of the evidence. 13.-18. Accepted. 19.-24. Rejected, subordinate to HO findings. 25.-37. Rejected, relevancy. 38.-39. Rejected, not supported weight of the evidence. 40. Accepted. 41.-47. Rejected, relevancy. 48.-59. Accepted. Rejected, argumentative. Accepted. 62.-66. Rejected, subordinate to HO findings. 67.-68. Rejected, not supported by weight of the evidence. 69.-72. Rejected, relevancy. 73. Accepted. 74.-78. Rejected, subordinate to HO findings. 79.-81. Accepted. 82.-88. Rejected, relevancy. 89.-91. Accepted. 92. Rejected, not supported by weight of the evidence. 93.-94. Accepted. Rejected, not supported by weight of the evidence. Accepted. Rejected, relevancy. 98.-102. Accepted, but not verbatim. Rejected, credibility. Rejected, subordinate to HO findings. 105.- 107. Rejected, credibility. 108.-109. Rejected, relevance. 110.-111. Rejected, credibility. 112.-113. Accepted. 114. Accepted. 115. Rejected, credibility. 116. Accepted. 117. Accepted. 118. Rejected, not supported by weight of the evidence. 119. Rejected, unnecessary. 120.-121. Accepted. 122.-125. Rejected, subordinate to HO findings. Respondent's Proposed Findings 1.-5. Accepted. 6. Rejected, relevancy. 7.-9. Accepted. 10.-11. Rejected, unnecessary. 12. Subordinate to Hearing Officer's findings on this point. 13.-35. Accepted, but not verbatim. COPIES FURNISHED: Mary C. O'Rourke, Esquire West College Avenue Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire Post Office Box 551 Tallahassee, Florida 32302-0551 Margaret Jones Clerk Florida Commission On Human Relations John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue Whether Respondent Eastern Florida State College (EFSC) engaged in discriminatory employment practices and retaliation, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Garrett is a 53-year-old African American woman. EFSC is a public college in Brevard County, Florida. For the time period relevant to this matter, EFSC is, and has been, her employer. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC eliminated her position as e-Learning Coordinator. EFSC did not fill Ms. Garrett’s position in the e-Learning department; rather, the prior job duties were assigned to other members in the e-Learning department. After eliminating the position of e-Learning Coordinator, EFSC offered Ms. Garrett the position of Coordinator of the Office of Undergraduate Research (OUR). The OUR department supports and promotes research opportunities among undergraduate research students through EFSC’s four campuses. Ms. Garrett accepted EFSC’s offer, and Ms. Garrett became EFSC’s first employee to hold the position as Coordinator of OUR. In lieu of offering Ms. Garrett the position of Coordinator of OUR, EFSC could have laid off Ms. Garrett following the elimination of her position as e-Learning Coordinator. However, rather than laying her off, EFSC found a new position for Ms. Garrett. Following her transfer to the position as Coordinator of OUR, Ms. Garrett’s salary and benefits remained unchanged from her prior position as e-Learning Coordinator. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as Coordinator of OUR. At that meeting, Dr. Handfield—who was Ms. Garrett’s new supervisor—informed Ms. Garrett that Dr. Spring and Mr. Herber were the founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR, Dr. Spring and Mr. Herber, who were full-time faculty members, oversaw the OUR program. Dr. Handfield also informed Ms. Garrett that should she have any questions regarding her position as Coordinator of OUR, she should consult with Dr. Spring and Mr. Herber. As of the date of the final hearing, Ms. Garrett remained employed by EFSC as the Coordinator of OUR, and continues to receive the same salary and benefits that she received when she was the e-Learning Coordinator. Allegations of Adverse Employment Action EFSC originally intended for the Coordinator of OUR to be a Director, and possess a doctorate degree. However, EFSC later changed this position to Coordinator, which did not require a doctorate degree, and which had a lower salary. Ms. Garrett never applied for the Director of OUR position, and she does not have a doctorate degree. Ms. Garrett testified concerning her belief for the reason that EFSC transferred her to the Coordinator of OUR position, stating: I believe they did that because the intent was to put me in a position that was beyond my reach so that when I had issues and problems, they could use that and tie it with this position in order to say that I could not do the job. On April 12, 2019, Ms. Garrett received a six-month performance evaluation covering her first six months in her position as Coordinator of OUR. Dr. Handfield provided the performance evaluation approximately four months after the performance period ended. The performance evaluation indicated that Ms. Garrett was deficient in the areas of teamwork, valuing differences, and communication. Following the performance evaluation, Ms. Garrett did not lose any pay or benefits, and nothing adverse happened to Ms. Garrett as a result of the performance evaluation. Ms. Garrett testified that she believed Dr. Handfield gave her that evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or gender. She further testified as follows: Q. Okay. But just to be clear, not gender, age, or race. You think it’s retaliation, what she did, correct? A. Correct. Q. Okay. And what was she retaliating against you for in your view or what facts do you have that it was for retaliation? A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance review period, which would have been July 9th, 2018, until January 9th, 2019. Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the six months before that; is that what you’re saying? A. Yes In January 2019, Ms. Garrett requested that she use Canvas shell computer software to enable her to build an orientation outline. EFSC denied this request, because it would not generate money. Allegations of Comparator Ms. Garrett identified Justin Looney, a 38-year-old white male, as a comparator in support of her discrimination claim.1 Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee working as an Academic Services Coordinator at EFSC’s Patrick Air Force Base campus; upon the closing of that campus, EFSC eliminated Mr. Looney’s position and, similarly to Ms. Garrett, transferred him to a newly-created position in which he received the same salary and benefits. 1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible comparator, stating that she was a white female. However, Ms. Garrett failed to introduce any additional facts or evidence concerning Ms. Sheltman’s status or to explain how the undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter. Ms. Garrett contends that EFSC treated Mr. Looney differently, during his transfer, in that EFSC provided Mr. Looney more notice time between the elimination of his prior position and the transfer to his new position. Ms. Garrett also contends that EFSC treated Mr. Looney differently than her because Mr. Looney was Dr. Handfield’s son-in-law. Allegations of Hostile Work Environment Ms. Garrett testified that at the July 10, 2018, meeting, Dr. Spring commented about the uncleanliness of the OUR office, and recommended that Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett also testified that she declined to assist Dr. Spring in hanging posters on the wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that the OUR signage was covered up on the outside of the building, and asked Ms. Garrett to correct this. Ms. Garrett testified that in subsequent meetings with Dr. Handfield, she “shared [her] concerns regarding the work environment[,]” and stated that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.” Ms. Garrett testified that Dr. Spring micromanaged her role as the Coordinator of OUR; for example, Dr. Spring continued to process online student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also testified that Dr. Spring opened the OUR online student forms too early, which prevented Ms. Garrett from matching faculty mentors with student applicants.2 Ms. Garrett also testified that Dr. Spring made decisions concerning the OUR without consulting with her. Ms. Garrett testified that Dr. Spring would send her e-mails asking if Ms. Garrett had completed the work requested of her. 2 Ms. Garrett also testified that Mr. Herber was not involved in micromanaging her role as the Coordinator of OUR. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should be doing, and would become vocal with her dissatisfaction of Ms. Garrett’s job performance. Ms. Garrett testified that she did not know why Dr. Spring engaged in any of these actions. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified that her work atmosphere became “more tense … in terms of Dr. Spring and Mr. Herber starting to make comments about allegations about my work.” She further testified that after this meeting, Dr. Handfield “started issuing directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and Mr. Herber for input prior going to other EFSC campuses to host information tables. Ms. Garrett claimed that she was subjected to a hostile work environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say disparaging comments during the meeting.” For example, “[t]hey would talk across me and I did not reply.” Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett testified that Dr. Handfield openly discussed supervision of the OUR with Dr. Spring and Mr. Herber. Findings of Ultimate Fact Ms. Garrett presented no persuasive action that EFSC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race-based, sex-based, or age-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age discrimination. Ms. Garrett presented no persuasive evidence that EFSC’s actions subjected her to harassment based on race, sex, or age. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age harassment. Ms. Garrett presented no persuasive evidence that EFSC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Garrett presented no persuasive evidence that EFSC’s actions were sufficiently severe or persuasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Mary F. Garrett Apartment 2508 2741 Caribbean Isle Boulevard Melbourne, Florida 32935 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Respondent is a registered farm labor contractor with social security number 264-86-0916 and certificate number 4-3266-K 86 I. He is part owner of Highlands Harvest Corporation and is registered with Petitioner as the Corporation's representative. Respondent signs payroll checks for Highlands Harvest, hires and fires its workers, and was referred to as the "bossman" by his brothers, Stanley and Nathaniel Hawthorne, and Zephrin Augustine. On or about February 18, 1987, and March 2, 1987, Respondent recruited and hired farm workers for a fee, and directed, controlled and supervised their work as well as that of farm labor contractors who were not registered with Petitioner. Specifically, he hired and supervised Ortland Williams and Stanley Hawthorne as farm labor contractors, neither of whom had current and valid certificates of registration at the time. Respondent contracted with Ortland Williams and Stanley Hawthorne, who were acting as farm labor contractors, for the employment of farmworkers in February and March, 1987 before said contractors displayed to him a current certificate of registration issued by Petitioner. Respondent's actions were taken on behalf of Highlands Harvest Corporation for growers in Highlands County, Florida. However, as registered agent of the Corporation and based upon his role as the principal managing partner of the Corporation, Respondent is responsible for these actions. Therefore, his argument that the Corporation, not he, should be held responsible is rejected. Ortland Williams and Stanley Hawthorne functioned as "goat drivers," as the term is used in the industry, at all times material hereto. Specifically, they gave directions to, and controlled the daily work of up to 15 farm workers under their direct supervision. They received a fee based upon the number of boxes picked each day by their crew. Williams transported such workers to the groves in February, 1987, and Stanley Hawthorne was responsible for recruiting and hiring the workers, according to a statement, he gave to Larry Coker, compliance officer, on March 2, 1987. As such, Williams and Stanley Hawthorne were acting as farm labor contractors. An administrative penalty of $1000 has previously been assessed against Respondent for violating Section 450.35, Florida Statutes, following an administrative hearing in DOAH Case Number 87-1644.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order assessing an administrative penalty of $2000.00 against Respondent. DONE AND ENTERED this 3rd day of November, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3636 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 6, but otherwise rejected as irrelevant to this case. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 2 and 5. Adopted in Finding of Fact 3. Ruling on Respondent's Proposed Findings of Fact: 1. Rejected in Finding of Fact 4. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building, Suite 117 Tallahassee, Florida 32399-2152 Andrew B. Jackson, Esquire 150 North Commerce Avenue Sebring, Florida 33870 Hugo Menendez, Secretary Department of Labor and Employment Security 2590 Executive Center Circle East 206 Berkeley Building Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 2562 Executive Center Circle East 131 Montgomery Building Tallahassee, Florida 32399-2151
The Issue Whether Respondent Florida Department of Economic Opportunity (the Department or DEO) engaged in discriminatory practices, concerning Petitioner’s disability, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright was an Employment Program Specialist with the Department’s Reemployment Assistance Division. Although she primarily worked in the Special Programs Child Support unit, she was also assigned to the Benefit Records unit during her employment with the Department. Ms. Wright testified that her issues with the Department started in 2014, and continued until her resignation on August 15, 2018. In 2014, Ms. Wright began experiencing serious medical issues, including bowel and bladder trouble, fatigue, and fibromyalgia. In September 2014, she took a month of leave from her employment because of these medical issues. Upon her return, Ms. Lampkin, who worked in DEO’s human resources department (HR), primarily focused on payroll, and Ms. Wright’s then-supervisor, Ayman Youseff, instructed her to use “leave without pay” for additional absences. Ms. Wright testified that after her return in 2014, Mr. Youseff began harassing her after she took another leave from employment, in the form of requiring her to provide additional supporting medical documentation for the leave. When Ms. Wright informed Mr. Youseff that his request was incorrect, he apologized and advised his supervisors of the mistake. Ms. Wright and her former co-worker, Ms. Milton, both testified that Mr. Youseff was rude and unprofessional. Ms. Milton testified that Mr. Youseff also had issues with Ms. Wright concerning her absences due to illnesses, and with other employees donating leave to Ms. Wright. Ms. Wright also testified that Mr. Youseff made her turn in her timesheets to him directly, as opposed to HR. Ms. Wright testified that she viewed this request, as well as requests from HR to use donated sick leave after she had exhausted all other remaining leave, and ultimately to use leave without pay—which she acknowledged were prompted by her absences from work during this time period—as harassment. In February 2015, Ms. Wright requested a transfer back to a previous unit within DEO, under a supervisor she liked, because she felt she was being harassed. DEO granted her transfer request in less than two weeks. Ms. Wright’s new supervisor was Mr. Leonard. However, after her transfer, Ms. Wright’s medical conditions did not go away. In September 2016, she submitted a request for a modified schedule accommodation to Mr. Huddleston, in DEO’s Office for Civil Rights, which noted that she had issues in the mornings because of her medical condition. DEO granted this request, and changed Ms. Wright’s work schedule to 10:30 a.m. through 6:30 p.m. Beginning in early 2017, DEO overpaid Ms. Wright several times because she failed to complete her timesheet and failed to timely document her use of leave without pay. In August 2017, Ms. Wright took a one-month absence from employment because of her medical issues, and was frequently absent from work during the following few months. During this time period, an HR employee accepted Ms. Wright’s incorrect timesheets for those time periods, and recouped each month’s overpayment from the following month’s pay. This became an issue for DEO because Ms. Wright utilized leave without pay for most of the month of August; however, the resulting lack of funds owed to her precluded DEO from immediate recoupment. Ms. Lampkin, who had left her employment with DEO but returned to her position in August 2017, recognized the payment issue with Ms. Wright. Ms. Lampkin testified that, because of Ms. Wright’s submittal of timesheets that utilize leave without pay after the payroll deadline for correcting timesheets, DEO’s HR department began paying Ms. Wright “on-demand,” i.e., payment for hours that she actually worked, to avoid overpaying Ms. Wright month after month. DEO introduced into evidence the Bureau of State Payroll Manual (Manual), which governs DEO’s handling of payroll issues. With respect to salary overpayment, the Manual states that “Agencies are responsible for identifying and preventing salary overpayments ” Although Ms. Wright contends that this switch from recoupment (which resulted in salary overpayment) to payment on-demand was evidence of harassment based on her disability, she also testified, on cross-examination, that “it’s verified in [the Manual] that it could be done that way.” Ms. Lampkin also credibly explained an issue that arose with Ms. Wright’s allegation that DEO canceled her insurance benefits, which Ms. Wright considered additional harassment. Ms. Lampkin testified: The term canceled is kind of an overstatement. There is a glitch in their insurance if I have to cancel their check and pay them on demand, because that means that the payment doesn’t go over when the regular payroll runs, and it gets paid on supplemental, and it’s usually on the same date that their payday is, but then it’s—the payment to the insurance companies would be sent at a later date than the other ones. It would be a lag time there. * * * If I canceled their monthly paycheck, that stops payment going to any pretax deductions; it would stop them. And then by paying them on demand, that would create the payment and send it over, but the difference in an on-demand and the regular payroll is processed approximately one week before payday. And on-demand is processed three days before payday. Technically two days, because the third day is when they get paid so—so it’s that lag time from a week to down to three days. Ms. Wright also testified that DEO engaged in harassment in discouraging other employees from donating sick leave to her. For example, in 2018, Ms. Wright testified that DEO hindered Charlie Davis, a DEO management level employee, from donating hours to her. DEO presented evidence that Ms. Wright was the recipient of many sick leave donations during her employment; all told, she received and used over 1,000 hours between 2014 and her resignation. Although Mr. Davis had donated sick leave hours to Ms. Wright previously, Ms. Pottle, who was Ms. Lampkin’s supervisor in DEO’s HR Department, explained that DEO employees in a supervisory or management position “are highly discouraged from donating to employees because it – it could be construed as favoritism.” Ms. Wright testified that she discussed Mr. Davis’s intention to donate additional sick leave hours with another DEO employee, and Mr. Davis was ultimately permitted to donate sick leave to Ms. Wright. On February 6, 2018, in response to Ms. Wright’s expressed concerns, individuals in Ms. Wright’s supervisory chain and Ms. Lampkin, met with Ms. Wright to discuss two options she could use in an attempt to resolve her leave and payroll issues: (a) be paid on-demand early, with the balance paid after she finalized her timesheet at the end of the month; or (b) remain on automatic pay, but provide donated leave hours and any necessary medical certification supporting their use by the 15th of each month. Following the February 6, 2018, meeting, Ms. Wright began providing medical certifications, which stated that she needed time off from work intermittently to attend medical appointments. Ms. Wright testified that she believed that these medical certifications allowed her to arrive for work as late as she felt necessary due to her medical condition. Ms. Wright, during a June 5, 2018 meeting with Mr. Leonard, expressed this belief; Mr. Leonard, in an email to Ms. Wright that same day, asked her “to provide supporting documentation regarding the need to arrive at work after 10:30 a.m. since the most recent documentation reflects a schedule of 10:30 a.m. to 6:30 p.m.” Mr. Leonard also testified about his team’s experience covering for Ms. Wright when she was absent. He stated that Ms. Wright cross-trained other members of this team to complete her work in her absence. However, when covering for Ms. Wright, these team members would then have work duties above and beyond their regular work duties. On June 8, 2018, Ms. Wright submitted a request to Mr. Huddleston in DEO’s Office for Civil Rights requesting a flexible, part-time schedule that would allow her to arrive for work between 10:30 a.m. and noon, and end her workday at 6:30 p.m. (Second Accommodation Request). With this Second Accommodation Request, Ms. Wright also submitted a letter from her physician stating that she was unable to arrive to work and do her job before 10:30 a.m., and would benefit from the flexible schedule she requested. At the time of Ms. Wright’s Second Accommodation Request, DEO’s Reemployment Assistance program was undergoing a significant reorganization. Ms. Wright worked in the Special Programs unit of DEO’s Reemployment Assistance program at that time. Mr. Huddleston testified that, after receiving Ms. Wright’s Second Accommodation Request, DEO decided to deny it. In an email dated July 11, 2018, Mr. Huddleston wrote: After reviewing your request, at this time, your request, to modify your accommodation of a flexible part-time work schedule is denied. Currently your accommodation allows you to work at 10:30 AM instead of your regularly scheduled start time of 8:00 AM. Your new accommodation request asks that you be allowed to arrive at work after 10:30 AM but before 12:00 PM. In making this decision our office has spoken with your management team and has determined that this modification would cause an undue hardship. This modification to your existing accommodation would also require a lowering of performance or production standards. Based on these two factors, we have determined that you would not be able to perform the essential functions of your position if this modification were to be put into place. The Equal Employment Opportunity Commission states that essential functions are basic job duties that an employee must be able to perform, with or without a reasonable accommodation. These duties must be performed to achieve the objectives of the job. As part of this, and all accommodation request reviews, our office analyzed your position to determine its purpose and essential functions, consulted with your management team, and researched and explored accommodation options to assess the effectiveness of the accommodation. During this interactive process we explored the possibility of reassigning you to another position that was as close as possible to your current position in status and pay; however, we were unable to find a suitable position. There are no part-time positions currently available and the essential functions of your position can not be completed working the hours you requested. Our office would be more than happy to meet with you to discuss this further and to explore other accommodation options that you and/or your medical professional come up with. However, on July 10, 2018—the day before Mr. Huddleston sent the email denying the Second Accommodation Request—Ms. Wright went on another month-long leave of absence from her employment because of her worsening medical condition. Ms. Wright testified that she believed that DEO would approve of her Second Accommodation Request and that, after returning to work, she would start the new schedule. Ms. Wright testified that she did not know the status of her Second Accommodation Request until she returned to work (after her month-long leave of absence) on August 13, 2018, and read Mr. Huddleston’s email. She sent him the following email response later that afternoon: Thanks for reviewing my request to modify my work schedule. I understand that there is no part- time positions available; but I was referring to me working at least 30 hours per week. When I met with my supervisor Marche and Joel in June concerning me arriving later than my scheduled time 10:30 AM, I advised them that I needed to request a modification to my previous work schedule because I moved back home with my mom which is outside of Quincy due to my health. I also advised them that it was impossible for me to arrive to work at 10:30 AM due to the distance I had to travel and the medications I take. I informed them that 11:15 or 11:30 would work better for me because I understand that my job consists of duties that must be performed in order to achieve the objectives outlined for the job. Please let me know when there’s a good time for us to meet. Thanks again for your help concerning this matter. Rather than wait for Mr. Huddleston’s response, Ms. Wright resigned on August 15, 2018, by a letter that she left in a co-worker’s chair. This resignation letter does not identify any reason for her resignation. On August 20, 2018, Mr. Huddleston—unaware of Ms. Wright’s resignation—actually responded to Ms. Wright’s August 13, 2018, email, inviting her to meet with him about her concerns. Ms. Wright testified that she has not sought out employment after her resignation from DEO because of her medical condition. Ms. Wright presented no persuasive evidence that DEO’s actions subjected her to harassment based on her disability, or that such actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, substantial evidence in the record upon which the undersigned could make a finding of unlawful disability harassment or hostile work environment. Ms. Wright presented no persuasive evidence that, at the time of her resignation, her working conditions were so intolerable that a reasonable person in her position would have felt compelled to resign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Angela Wright’s Petition for Relief. DONE AND ENTERED this 19th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Angela Michelle Wright 4102 Greensboro Highway Quincy, Florida 32351 (eServed) Dominique Gabrielle Young, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399 (eServed) Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
