The Issue Whether the Department of Insurance (DOI), now Department of Financial Services, discriminated against the Petitioner on the basis of national origin or age contrary to Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner is Elamir G. Ghattas, a naturalized American of Egyptian birth, who is 71 years of age. The Petitioner was employed by the DOI for 18 years. He was assigned to maintain the law library at the DOI in 1985, and performed those duties until 2002. His job title at that time was "Records Specialist," and his supervisor was Beverley DiGirolamo, who was the office manager of the Legal Division. In 2002, he was transferred from his duties in the law library to duties in the Service of Process Division (SPD) of DOI. His new supervisor was initially Carolyn Ash, who was asked to sign Petitioner's timesheet, and who was at a lower pay grade (13) than the Petitioner's pay grade (16). After he brought this to management's attention, Pam Edenfield was assigned to sign his timesheet. His duties involved maintaining and filing documents received by the DOI relating to the service of process in the legal cases filed throughout the state. The work of the division has increased greatly due to a change in the statutes, and the SPD could not process the increased workload with its existing employees. To resolve the workload issues, personnel from other portions of the legal department were transferred to the SPD. The Petitioner was one of approximately four individuals who were transferred from Legal Services Division to SPD. The decision to move the Petitioner was made by Ms. DiGirolamo and Ms. Edenfield based upon his low workload in the library and the high workload in SPD. After the Petitioner was moved, his duties were assumed as an additional duty by one of the legal secretaries who spends between four and eight hours on the activity per month. The basis for his move was explained to Petitioner by Ms. DiGirolamo and Ms. Edenfield, and by Mr. DowDell, who was their supervisor. Following his transfer, the Petitioner's performance suffered, and when he was formally counseled about it, he ultimately resigned and retired.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 26th day of August, 2004, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of August, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Elamir Ghattas 811 Chestwood Avenue Tallahassee, Florida 32303 Dennis Silverman, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2004.
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 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 was employed by Respondent at various times beginning in February 1999 and ending in her termination effective September 30, 2004. Respondent is an employer within the meaning of the Florida Civil Rights Act. At all relevant times, Respondent is in the hotel business. Respondent provides related services and amenities to its guests and to the general public, including a restaurant and bar on the hotel premises. Petitioner commenced her employment with Respondent as a waitress and was eventually promoted to bartender. At all relevant times, she worked under the supervision of Kurt Pfister (Pfister). At no time prior to the commencement of her employment, nor at any time during her employment, did Petitioner advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Likewise, Petitioner never advised Respondent that she had ever been diagnosed, treated, or hospitalized for any medical condition or disability. In fact, as Petitioner herself admits, she first claimed to be disabled approximately two weeks after she was terminated. Petitioner, as well as all of Respondent's employees, were trained in and required at all times to follow all of Respondent's policies and procedures generally applicable in its workplace. Additionally, every employee was trained in and expected to comply at all times with all policies and procedures applicable to his or her particular job. Violation of any of Respondent's policies or procedures subjected an employee to disciplinary action ranging from counseling to termination. As a bartender, Petitioner was trained and responsible for taking food and beverage orders; to present patrons with their bill(s); and to collect an approved form of payment, including cash. With regard to cash, Petitioner was trained in Respondent's policies and procedures known as "cash control policies." Cash control policies included a specific process for reconciliation of cash and tips at the end of each shift and a process for making cash drops and filling out deposit logs. Petitioner and all similarly situated employees were required to comply with cash control policies and were subject to disciplinary action up to and including termination if they failed to do so. Petitioner was qualified for her bartending position, and from the beginning of her employment through September 16, 2004, Respondent was well satisfied with Petitioner's work. Petitioner was often called upon to train new bartenders with regard to Respondent's policies, including cash control policies. She did so very well. For her efforts, Petitioner achieved the status of Respondent's most senior bartender, and as a reward was given the best shifts. Respondent enforced a policy against smoking on its grounds, except that smoking was permitted in a small, outside area at the south end of the premises. Petitioner was well familiar with the smoking policy and to Respondent's knowledge, complied with it until September 16, 2004. On that date, Petitioner was discovered smoking in a liquor storage room located inside the hotel building. She was given a written reprimand. Apart from the smoking infraction, Petitioner's September 16, 2004, shift was uneventful. She gave no indication to her customers or supervisors that she was in distress or could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job. Yet, on that night, Petitioner failed to follow cash control policies at the end of her shift. Of most concern to Respondent was that Petitioner left work with her cash sales short for the evening in the amount of $97.64. On September 17, 2006, Pfister learned of the policy violations and the attendant cash shortage; he thereupon contacted Petitioner by telephone. Petitioner again did not indicate to Respondent that she could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job and to comply with cash control policies. Petitioner conversed normally with Pfister and acknowledged that she had the $97.64 belonging to Respondent. Although she was not scheduled to work again until September 21st, she agreed to meet with Pfister and to return the money on September 19, 2004. Petitioner did not show up for the meeting. Neither did she return the money, or contact Pfister to advise when, or if, she would return the money. Respondent was entitled, at that point, to treat the matter as a theft; to terminate Petitioner's employment; and to seek law enforcement's assistance in recovering its money. Instead, Respondent exercised forbearance and gave Petitioner an indefinite suspension to afford her additional time to return the money and to explain to Pfister her reason(s) for failing to follow cash control policies on September 16, 2004. Respondent enforced a policy it called the no-call, no-show rule. Under the rule, employees are required to provide Respondent with four hours’ notice if for any reason they are unable to report on time for a scheduled shift. Absent extraordinary circumstances, which do not exist here, failure to provide the required notice is ground for disciplinary action. On September 21, 2004, and again the next day, Petitioner failed to report for her scheduled shift(s). She also failed to fulfill the four-hour notice requirement of the no call, no-show rule. For these two violations of the no-call, no-show policy, Petitioner was given a written warning. On September 23, 2004, Petitioner telephoned Pfister from an undisclosed location and advised she could not work previously scheduled shifts for the balance of the week. At first, Petitioner claimed she wanted time off on account of her “health.” Pfister offered her the opportunity to submit medical documentation in support of her request. At that point Petitioner stated that she was not seeing a doctor(s), and further stated that she was out of the state with her boyfriend. Petitioner added that she did not care about the hotel; that she was going to take care of herself first. Pfister responded that Petitioner should call him upon her return to town because the issue concerning the $97.64 could not remain unresolved. In the course of this conversation, Petitioner did not advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Petitioner's next contact with Respondent was on September 29, 2004, when Petitioner called Pfister and said she was back in town and wanted to meet with him. It was agreed the meeting would take place the following day at 1:00 p.m. and would also be attended by Rick Reilly (Reilly), Respondent’s senior vice president. Petitioner did not arrive at the appointed time and did not call to explain her absence. Instead, she arrived at 2:10 P.M. Petitioner smelled of alcohol; she swayed, staggered, and slurred her speech. She was profane and belligerent. Petitioner again failed and refused to return Respondent's money or to explain why she took the money. As previously and repeatedly noted, Petitioner did not take this opportunity to advise Respondent that she was disabled in any way, or required any type of accommodation(s) for any medical condition or disability in order to perform her job. She did, however, state that she was "not coming back" and demanded a paycheck and vacation pay. Reilly asked her if she was resigning and she replied, "I guess so." Fearing that Petitioner would attempt to deny or to retract her ambiguous resignation when she sobered up, Pfister and Reilly made a reasonable determination, based upon legitimate non-discriminatory business reasons, to terminate her employment effective September 30, 2006. The termination was not pretextual. There was no evidence regarding who, if anyone, replaced Petitioner. There was no evidence Petitioner was, at any time, treated less favorably than any similarly situated co- worker on account of her membership in any protected class, or for any other reason. Petitioner did not dispute that Respondent had no reason, at any relevant time, to believe she needed accommodations of any sort to perform her job. On October 15, 2004, Pfister received a fax from Petitioner requesting a "leave of absence, medical reason." In apparent support thereof, Pfister also receive a fax purporting to be from a doctor and further purporting to provide a medical explanation for Petitioner's request for "leave of absence, medical reason." In the latter fax, a representation was made that Petitioner was presently hospitalized for "an undetermined amount of time" due to "depression symptoms for the last several month (sic) in context of stressors related to her job and impending hurricanes." This information, such as it was, was untimely and was insufficient to cast doubt upon the bona fides of Petitioner's termination. On November 1, 2004, Petitioner came to Pfister's office to pick up her check(s) and, at last, to return Respondent's money. She made no comment or complaint regarding any alleged disability; neither did she indicate in any way that she believed herself to be a victim of discrimination. In sum, Petitioner could have been terminated as early as September 16, 2004, for legitimate non-discriminatory business reasons. There is no persuasive evidence that disability played any role in Petitioner's termination. Indeed, there was no persuasive evidence that Petitioner was, at any time, disabled within the meaning of the Act, or within the meaning of any other state or federal law. There was no evidence that Petitioner was replaced by a non-disabled individual, nor that she was, at any time, treated less favorably than any similarly situated co-worker.
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 FCHR issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of November, 2006, 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 9th day of November, 2006.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to an unlawful employment practice based upon her disability or based upon retaliation, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner was employed as a Training Specialist II in the staff development department of the Sunland facility of the Department of Children and Families. (Now the Agency for Persons With Disabilities.) At times relevant hereto, in October 2003, the Petitioner, Constance Gatewood, was employed by "Sunland Marianna" (Sunland). The Respondent Department of Children and Family Services is an agency of the State of Florida charged, as pertinent hereto, with implementing statutes, rules, and policies concerning persons with disabilities who are within its custody or otherwise. A meeting was conducted with Sunland's management and the Petitioner on October 8, 2003, in which the Petitioner provided documentation from a physician confirming that she suffered from a condition triggered by exposure to certain chemicals or perfumes. This condition was described as "potentially life threatening." The condition apparently primarily involved the Petitioner's respiration. Sunland sought to accommodate this condition by instructing attendees to training sessions conducted by the Petitioner to refrain from using perfumes, colognes, etc., which might aggravate the Petitioner's condition. There is no dispute that the Petitioner has a disability of this nature. Sunland also provided each new employee who came for training with the Petitioner with a separate similar notification. Sunland also posted the notification in and around the staff development building, the Petitioner's primary work place. Sunland also relocated the Petitioner's office and ordered alternative non- irritating cleaning supplies in order to accommodate the Petitioner's condition. Despite these accommodations the Petitioner's condition still sometimes became symptomatic. In an effort to minimize her exposure to perfumes or other chemicals the Petitioner on occasion would teach from her doorway, rather than standing in her accustomed place in front of the class. On occasion she would have to teach her class with all the doors opened, which sometimes created an uncomfortable draft in cold weather. On other occasions she would send students out of her class in the belief that they were wearing a perfume, cologne, or other chemical agent which was irritating her respiratory condition. On one or more occasions she had to rely on a co-worker to perform a cleaning task for which she was responsible. The Petitioner received a performance evaluation in March of 2004, which contained an overall rating of 4.33, a score which reflects that her performance exceeded expectations. On performance expectation number one, however, she received a grade of three rather than the four she had received the prior year. This was based upon a decline, in her employer's view, of her performance related to team work and respect for others. Because of this reduction from a four to a three on this category of her performance evaluation the Petitioner filed a Career Service Grievance. She contended that her performance had been based upon "confidential information," despite her supervisor's assurances that it was based on her supervisor's perception of problems the Petitioner had in the areas of cooperation with co-workers and respect for class attendees. Upon investigation, the Career Service Grievance was denied by a memorandum of April 8, 2004. Dr. Clemmons, the superintendent of the Respondent's facility, continued efforts to accommodate the Petitioner and her disability. He offered the Petitioner a job in an open position as a social worker on or about April 1, 2004. This position would have no deleterious effect on the terms, conditions, privileges, or benefits of the Petitioner's employment. The Petitioner was apparently pleased to have the job transfer to the new position and, in fact, volunteered to begin the position prior to the customary two week notice period. The Respondent has continued to attempt to accommodate the Petitioner and her disability as she has raised issues regarding her disability upon assuming her new position. The Petitioner, however, did not identify in advance any accommodation-related issues to her employer prior to beginning work in her new position.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2005. COPIES FURNISHED: Constance Gatewood Post Office Box 262 Campbellton, Florida 32426 Amy McKeever Toman, Esquire Agency for Persons With Disabilities Sunland Center 3700 Williams Drive Marianna, Florida 32446 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue What amount of attorney's fees is to be paid to Petitioner pursuant to the award of fees in the Final Order Awarding Affirmative Relief from Unlawful Public Accommodation Discrimination. What amount of costs is to be paid to Petitioner pursuant to the award of costs in the Recommended Order and Final Order.
Findings Of Fact A Recommended Order was entered by Daniel M. Kilbride, Administrative Law Judge, on October 17, 2002, awarding affirmative relief as follows: Finding that Respondent discriminated against Petitioner based on her race (African-American); Awarding Petitioner $500 in compensatory damages; Issuing a Cease and Desist Order prohibiting Respondent from repeating this practice in the future; and Awarding a reasonable attorney's fee as part of the costs. Respondent filed Exceptions to the Administrative Law Judge's Recommended Order, but did not file a transcript of the hearing as required in administrative proceedings. As a result of the failure, FCHR ordered the Exceptions stricken. FCHR's Final Order adopted the Recommended Order's Findings of Facts, Conclusions of Law, and remedies for the discrimination. No appeal was filed by Respondent. Respondent filed statement of defenses to the Motion for Hearing on Attorney's Fees and Costs in which Respondent denied that its action in the underlying proceeding was not justified and contended that the award requested by Petitioner would be unjust. The amount of reasonable attorney's fees and costs was sought pursuant to Section 509.092, Florida Statutes (2003), unfair discrimination by the operator of a public lodging establishment. Section 509.092, Florida Statutes (2003), which establishes a right of action pursuant to Section 760.11, Florida Statutes (2003), specifically states that an award of attorney's fees should be interpreted in a manner consistent with federal case law involving a Title VII action. Petitioner testified in the prior hearing that she was badly hurt by the treatment received at the Sleep Inn. When she was discriminated against, she threatened a suit against the hotel that night because she wanted them to give her a room. When she did not receive a room, she felt she had been treated in a humiliating fashion and was emotionally injured. She sought counseling professionally, then continued counseling with her sister, who was a licensed psychologist. Petitioner determined that the Sleep Inn was not going to apologize to her or do anything except back-up its staff member. She felt she had to leave it to legal remedies to secure relief for herself and others. When an offer was received from Respondent's attorney in a letter dated January 28, 2002, offering a sum to save costs of litigation, but denying any liability on the part of Respondent, Petitioner wanted to go forward with the matter to receive public acknowledgement that she had been discriminated against by Sleep Inn. Thus, Petitioner was satisfied with the Recommended Order and the Final Order of FCHR, even though the dollar amount awarded to Petitioner was only $500.00. Petitioner was aware that there were financial differences in damages for filing an administrative proceeding versus a civil action in circuit court. Petitioner understood that monetary damage for pain and suffering could not be awarded in the administrative procedures. Only documented economic damages could be awarded to Petitioner along with affirmative relief declaring that she was discriminated against and directing Respondent to stop condoning discriminating acts. Petitioner retained Tricia A. Madden, Esquire, on June 13, 2000, to represent her in seeking relief from the discriminatory act and signed a contingency contract. The contract states that Petitioner's attorney will be paid the greater of a reasonable attorney's fee awarded through the administrative process or a percentage fee from the total recovery. The contract further states that if the client prevails or if the contract is terminated, the client must pay the costs listed on the contract to include all costs in investigation, research, and litigating the claim, including, but not limited to, telephone charges, copying costs, postage, and transportation charges. A charge of discrimination was filed on October 18, 2000, with FCHR. When the charge could not be quickly identified as received by FCHR, a second charge was filed on May 23, 2001. Determination of Cause in favor of Petitioner was received after an investigation was conducted by FCHR. Respondent continued to deny liability and made no offers to accept liability or provide any relief to Petitioner. Thereafter, Petitioner's Petition for Relief was timely filed. An attorney appeared for Respondent and filed a Motion to Dismiss. It was withdrawn after discussions with Petitioner's counsel when Respondent's counsel was made aware that the specific motion was inapplicable to a public lodging discrimination case. Stephen F. Baker, Esquire, was substituted as counsel for Respondent on January 6, 2002. He filed a Motion for Summary Judgment on grounds which were not applicable to a public lodging establishment case and outside the jurisdiction of the Administrative Law Judge. The Motion for Summary Judgment was denied by the Administrative Law Judge. Petitioner's counsel has practiced law for 20 years and has practiced in the area of discrimination law in various types of cases, including public lodging establishment cases, employment discrimination cases, Americans with Disabilities Act cases, and education cases for disabled children in civil court and in administrative proceedings. She regularly takes such cases on a contingency basis, believing it is necessary in order to give Petitioner access to the courts. Petitioner's counsel said that although she had a very capable paralegal and staff to assist her in other cases, her paralegal and staff were not qualified to provide more than secretarial assistance in handling discrimination cases; and she has never been able to find a paralegal who was knowledgeable in discrimination cases. Therefore, all of the legal work, including directing the investigation, contact with witnesses, and all pleadings were handled by her in discrimination cases. Her time on the case covered three and a-half years, when the Final Order was entered, and Mr. Indest was attorney-of-record for 13 months. Mr. Indest testified on behalf of Petitioner as an expert on attorney's fees and costs and provided his curriculum vitae. Mr. Indest testified to extensive experience in teaching seminars and classes and writing publications on the subject of attorney's fees and the law, standards, and method of determining the reasonable amount of fees and costs. Mr. Indest is familiar with Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990); and the Rule Regulating Florida Bar 4-1.5 and testified to each factor identified in the rule. Mr. Indest had a previous opportunity to observe Ms. Madden's skills when they were opposing counsel in a nursing home case and when Ms. Madden testified for him as an expert witness on issues, not attorney's fees, in an administrative hearing case where he represented a Petitioner versus the Department of Children and Family Services. He testified that Ms. Madden had a reputation in the community of being a very skilled and aggressive attorney with 20 years' experience representing plaintiffs and petitioners. He further testified she was the only attorney that he was aware of who took discrimination cases on a contingency basis and one of only three attorneys he knew that regularly took discrimination cases on behalf of an employee. Mr. Indest testified he had specifically surveyed other attorneys in the Orlando area as to the fees charged in administrative proceedings and discrimination cases. He testified the range of fees for handling discrimination cases and administrative cases in the Orlando metropolitan area is from $250.00 to $450.00 per hour for one attorney who had only 15 years of experience and from $400.00 to $500.00 for one attorney with 30 years of experience. Other attorneys with 20 years of experience charge fees from $300.00 to $450.00 per hour. Mr. Indest charges $350.00 per hour and is raising his fee as of January 1, 2005, to $400.00 per hour. Mr. Indest said Ms. Madden had only requested $300.00 per hour in this case and should raise her fees to be commensurate with her skills, knowledge of the area of law, and the fees usually charged in the Central Florida area. It was his opinion that $300.00 per hour was a very reasonable fee in the local market for this case. Mr. Indest reviewed the taxable costs submitted on the amended costs list and said that with exception of the Westlaw figures, which Ms. Madden had withdrawn, all costs were reasonable and had to be paid by Petitioner. They were less than he and others would have charged, were applicable, and should be awarded to Petitioner. Mr. Indest testified he had spent eight hours prior to the day of hearing and approximately two more hours before the hearing reviewing the file on the Vanessa Brown case and asking questions on the case and proceedings. He stated he had reviewed the file, but had not read the depositions in detail, although he had scanned the six depositions. He noted Ms. Madden's time for preparation and attendance included travel time, depositions, research, investigation of the witnesses, and the trial of the case. He had read the Recommended Order and, in his opinion, the necessary testimony to support the case was detailed. It was his opinion that it took a high level of skill to prosecute the case successfully. He stated the 122 hours claimed by Petitioner's counsel were very reasonable and that he would have probably had to spend closer to 200 hours preparing the case. He said Petitioner's counsel demonstrated her expertise and efficiency in handling the case by the fact that she prepared for and tried the case at hearing with successful results of her client with only 122 hours of work. Mr. Indest noted Respondent's counsel billed no preparation time for depositions and hearings. He found that unusual and puzzling, and stated that preparation time was certainly necessary for a petitioner's counsel. He said Petitioner had to carry the burden of proof and had to marshall the evidence and witnesses. Mr. Indest stated he could accept that Ms. Madden put in 11 hours or more on any given day at times on this case since he often had to work more than 11 hours a day. Mr. Indest observed that the Proposed Order prepared by Petitioner's counsel was well prepared. Respondent's attorney testified he had been an attorney since 1976 and had been retained by Respondent sometime in December 2001. Respondent's attorney said he felt the case was always a money case from his initial involvement. In the Proposed Recommended Order, Petitioner had asked for $15,000.00 as a monetary consideration. However, the monetary award was only $500.00. He agreed that the court costs claimed were reasonable. He would have discussed an apology if that was what Petitioner wanted with his client, who was a businessman. However, contrary to this suggestion that his client would have admitted liability, settlements normally do not admit liability or fault on the part of the defendant. Respondent's attorney said he spent 44 hours on this case with six depositions and two witnesses at trial. He argued that Petitioner's counsel claimed that she had 140 other active cases and could not possibly have spent three weeks' preparation time on this case. Mr. Young testified that he has practiced since 1976 and has handled a variety of cases. He said he has been involved in discrimination cases as the attorney for the City of Davenport and later the City of Winter Haven. He stated on cross-examination that he has not gone to trial on a discrimination case; that they were always settled before litigation. He reviewed Respondent's file to prepare his Affidavit for an hour and a-half. He spent another hour and a- half the day of the hearing to review Respondent's file to refresh his memory and review Petitioner's counsel's hours. He testified that the outcome of the case should have been apparent from the first, and it was a routine case. He did not read the depositions, but he read the Recommended Order and felt it was a simple case of limited complexity. He said in his opinion the case could have been done in five days of work altogether, with one-half day for all pleadings and one day to both prepare and try the case. It was a straight-forward presentation and story, and the fee should only be $200.00 per hour. He had not surveyed any other attorneys who had litigated discrimination cases or who represented plaintiffs/petitioners in discrimination cases. He said in Central Florida, fees are all over the block; and they had attorneys in Winter Haven who charged up to $450.00 per hour. He said litigation should be a last resort, and it was a public interest case with no monetary recovery. He was of the opinion that 40 hours at $200.00 was reasonable, and he had reduced the fee to $6,000 based on results obtained. The expert witness for Respondent alleged that the delay in response to interrogatories and a Request to Produce were demonstrations that Petitioner's attorney had not performed her role efficiently, had wasted the time of Respondent's counsel, and time for such actions should not be billed or awarded to Petitioner. Respondent wasted Petitioner's counsel time also with two erroneous motions, but Respondent's counsel billed his client for his motion as noted in his time statement. Urging clients to complete discovery is a known time requirement of attorneys, and the delay was caused by Petitioner's personal problems, not by Petitioner's counsel. Ms. Madden voluntarily withdrew the entry of eight hours on her item slips listed as time spent proofing the attorney's fees time delineation. Entitlement to attorney's fees and costs had already been established by this tribunal in the Recommended Order and Final Order. Petitioner's counsel also voluntarily deleted $356.35 for Westlaw research, as a cost not chargeable to Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered: Awarding attorney's fees to Petitioner in the sum of $54,900.00; and Awarding costs to Petitioner in the sum of $8,315.79, which includes $4,200.00 to be paid to Petitioner for payment of Petitioner's expert witness, George F. Indest, III, Esquire. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S 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 23rd day of November, 2004. COPIES FURNISHED: Stephen F. Baker, Esquire Stephen F. Baker, P.A. 800 First Street, South Winter Haven, Florida 33880 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Tricia A. Madden, Esquire Tricia A. Madden, P.A. 500 East Altamonte Drive, Suite 200 Altamonte Springs, Florida 32701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent is liable to Petitioner for employment discrimination in violation of section 760.10, Florida Statutes (2018).1/
Findings Of Fact Petitioner is a 63-year-old female, who was employed by Respondent in its Child Support Program in the Tallahassee Service Center from June 9, 1997, to April 5, 2010. In 1997, Petitioner became employed as a Revenue Specialist II (“RS II”) in the Payment Processing and Funds Distribution (“PPFD”) section, where she performed financial reviews and audits of client financial accounts. On January 28, 2005, Petitioner was promoted to RS III in that section, where Petitioner continued to perform financial reviews and audits, and assumed supervisory duties, including interviewing candidates and training new employees. In that position, Petitioner was considered a PPFD team expert. At her request to “learn something new,” Petitioner was transferred to the Administrative Support section in April 2009. She was assigned half-time to the Administrative Paternity and Support (“APS”) team, and half-time to support the PPFD team. The split-time arrangement was terminated in July 2009, and Petitioner was assigned to APS full-time. On December 7, 2009, Petitioner received her first performance evaluation for her new position. The evaluation covered the time period from April 17, 2009, to January 29, 2010.2/ Petitioner’s supervisor, Katherine Osborne, rated Petitioner’s overall performance at 2.11. Petitioner was placed on a Corrective Action Plan (“CAP”) concurrent with her December 7, 2009 performance evaluation. The CAP period ended on February 8, 2010. On February 16, 2010, Petitioner was notified, in writing, that the Department intended to demote her to the position of RS II because she did not successfully complete the expectations during the CAP period, or “failed the CAP.” Petitioner exercised her right to an informal hearing to oppose the intended demotion. On March 2, 2010, Petitioner was notified, in writing, that she was being demoted to the position of RS II because she failed the CAP. Petitioner resigned from her position with the Department, effective April 5, 2010. On September 15, 2010, Petitioner filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), challenging her demotion as illegal employment discrimination. On February 12, 2011, the EEOC issued its determination, stating that it was “unable to conclude that the information obtained establishes violations of the [requisite] statutes.” Petitioner’s 2017 Applications On August 16, 2017, the Department advertised 20 openings for an RS III (position 4372) in customer service administration. Petitioner applied for the position, met the screening criteria, took and passed the skills verification test, and was interviewed for the position. Petitioner was interviewed by a selection committee composed of Tiffany Clarke, Janeen Evans, and Jonathan McCabe. Each of the three committee members rated Petitioner’s interview as “fair” on a scale which ranged from “poor,” “fair,” and “good,” to “excellent.” Petitioner was not considered for the position following her interview. While the Department made some offers to candidates, ultimately the Department did not hire any candidates for position 4372. On October 2, 2017, the Department advertised 30 openings for an RS III (position 6380) in customer service administration. The main difference between the screening criteria for positions 4372 and 6380 was in education and experience. Position 4372 required applicants to have child support experience, while position 6380 gave a preference to applicants with child support experience. The Department’s goal in revising the requirements was to increase the applicant pool in response to the advertisement for position 6380. Petitioner applied for position 6380, met the screening requirements, passed the skills verification test, and was interviewed for the position. Petitioner was interviewed by a selection committee composed of Tiffany Clarke, Lance Swedmark, and Taronza Robinson. All three committee members rated her interview as “good,” and recommended advancing Petitioner’s application for reference checks. Mr. Swedmark conducted reference checks on Petitioner’s application. During that process, he was informed of Petitioner’s prior CAP failure, demotion, and resignation. Based on that information, the selection committee determined Petitioner would not be considered for the position. Hires for Position 6380 The Department hired 30 applicants from the pool for position 6380. Of the 30 hires, 10 were over age 40. Specifically, their ages were 56, 50, 49, 49, 48, 46, 44, 43, 42, and 41. Petitioner was 61 years old when she applied for position 6380. None of the members of the selection committee were aware of Petitioner’s age when she applied, or was interviewed, for the position. The ages of the 30 new hires were compiled from human resources records specifically for the Department’s response to Petitioner’s March 2018 charge of discrimination. None of the members of the selection committee were aware of Petitioner’s 2010 EEOC complaint against the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Florida Department of Revenue, did not commit any unlawful employment practice as to Petitioner, Jacquelyn James, and dismissing the Petition for Relief filed in FCHR No. 2018-04904. DONE AND ENTERED this 16th day of July, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2019.
The Issue The threshold issue presented is whether Petitioner can prove that Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes (2012)1/, so as to confer subject matter jurisdiction to consider the merits of Petitioner's discrimination complaint against Respondent.
Findings Of Fact Petitioner, an African-American male, was employed by Respondent between September 2011 and February 2012. Petitioner presented no testimony or evidence to prove that Respondent employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Petitioner was on notice that Respondent contended that Respondent has not employed 15 or more employees, or anywhere close to that number of employees, at any time pertinent to this proceeding. At the final hearing, Petitioner sought to excuse his failure to present any evidence on this issue by claiming that Petitioner had been unable to obtain any documents from Respondent that would show the number of employees Respondent has had. However, Petitioner admitted that he never attempted to utilize the discovery rules of procedure to require Respondent to given written answers under oath to written questions, or to require Respondent to produce documents for inspection and copying, or to require Respondent to produce individuals to provide sworn deposition testimony. In short, Petitioner's claimed inability to obtain information from Respondent was due to Petitioner's own failure to avail himself of the tools available to him in this proceeding to obtain such information. Mr. Blanton's unrebutted testimony was that he established Blanton Plumbing 14 years ago, and in all of its years in existence, the business has never employed more than five employees. During calendar year 2011 and calendar year 2012, including throughout the time period when Mr. Prince was employed, Blanton Plumbing had four employees. Mr. Blanton's testimony was corroborated by the Workers' Compensation and Employer's Liability Insurance Policy information page, summarizing the policy terms for Blanton Plumbing, the named insured, with four employees. This coverage was effective for the period of February 28, 2011, through February 28, 2012, which includes the entire time that Mr. Prince was employed by Blanton Plumbing. Mr. Prince was given the opportunity to cross-examine Mr. Blanton, to question the veracity of Mr. Blanton's testimony that Blanton Plumbing had only four employees throughout the time that Mr. Prince was employed and has never had more than five employees. Mr. Prince declined to ask Mr. Blanton any questions, giving rise to the inference that Mr. Prince personally had no information to the contrary. If Mr. Prince knew that there were 14 or more other employees at Blanton Plumbing while he worked there, Mr. Prince would have asked Mr. Blanton about all of those other employees by name or by position. There is no evidentiary basis from which a finding could be made that Respondent employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 28th day of November, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 November, 2012.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race, national origin, age, sex, and/or disability in violation of section 760.10, Florida Statutes.1
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: PARTIES The Division is an employer as that term is defined in section 760.02(7). Mr. Gonzalez is a white Cuban male older than 40 years old. Out of respect for Mr. Gonzalez’s privacy, the Division stipulated that Mr. Gonzalez suffers from a disability or handicap without requiring him to disclose its nature at the hearing. Mr. Gonzalez has worked for the Division in Tallahassee since April 3, 2015. Mr. Gonzalez was initially hired in an Other Personal Services (“OPS”) capacity as an Operations Analyst I. On June 3, 2016, Mr. Gonzalez received a Career Service appointment to the same position, Operations Analyst I, which remains his position at the Division. Mr. Gonzalez is a switchboard operator. OCTOBER 24, 2019, AND ITS AFTERMATH While Mr. Gonzalez’s complaint broadened over time, the triggering event to his conflict with the Division was a meeting with his immediate supervisor, Operations Service Manager Kimberly Jackson, and several coworkers on the morning of October 24, 2019. Early on the morning of October 24, 2019, Mr. Gonzalez phoned Ms. Jackson to ask if he could take some time off work that morning. Mr. Gonzalez explained that his daughter was having her sick dog put to sleep and that he wanted to be with her because the situation was very emotional. During this conversation, Ms. Jackson told Mr. Gonzalez that she was calling a meeting with all of the switchboard operators later that morning. She left it up to Mr. Gonzalez whether he wanted to miss the meeting. Mr. Gonzalez testified that Ms. Jackson’s manner of giving him the option not to attend the meeting was threatening. He testified that she said, “Well, if you want to play it that way.” He took her message to be that he had better not miss the meeting. Mr. Gonzalez came into work and attended the meeting. Ms. Jackson denied that she said “if you want to play it that way” or anything of the sort. She testified that she told Mr. Gonzalez that he could go be with his daughter. Ms. Jackson was aware that another of her subordinates would also be absent that morning. She planned to discuss the meeting topics with that employee later. She testified that it would not have been a problem to include Mr. Gonzalez in that discussion. At 7:41 a.m. on October 24, 2019, Ms. Jackson sent out a memorandum informing her subordinates of the meeting to be held at 9:00 a.m. The memorandum went out after Ms. Jackson and Mr. Gonzalez spoke on the phone. The timing led Mr. Gonzalez to allege that Ms. Jackson had called the meeting in response to his request for leave, apparently from some malicious desire to prevent him from being with his daughter. Ms. Jackson testified that she had planned to call the meeting before she spoke to Mr. Gonzalez on the phone. The purpose of the meeting was to remind staff of certain office procedures, such as the importance of arriving on time so that the switchboard could begin accepting calls promptly at 8:00 a.m., and the prohibition on excessive personal cell phone use. Ms. Jackson stated that she had no reason for wanting to keep Mr. Gonzalez away from his family. Mr. Gonzalez testified that the meeting was short, no more than five minutes. He sat quietly and listened to Ms. Jackson. When she was finished, he raised his hand to ask a question. Ms. Jackson continually interrupted, making it impossible for him to ask his question. Mr. Gonzalez felt embarrassed and demeaned in front of his fellow employees, but denied ever responding aggressively or in an unprofessional manner. Ms. Jackson gave a vague answer to his question. When he attempted to ask a second question, Ms. Jackson shut down the meeting. Ms. Jackson’s version of the meeting was that Mr. Gonzalez was very unprofessional. He was rude, aggressive, and interruptive. He did not wait for Ms. Jackson to finish before he began peppering her with questions. Mr. Gonzalez constantly asked her to point to agency rules or written policies to support the directives she was giving. Ms. Jackson tried to explain that these were just office procedures that any supervisor can establish, but Mr. Gonzalez would not be satisfied. At one point, he pointed his finger at Ms. Jackson and said, “Ma’am, I listened to you. Now you’re going to listen to me.” Ms. Jackson’s version of events at the meeting is the more credible. Ms. Jackson testified that two newly hired employees were present and she was concerned they would come away with the impression that this was how she conducted meetings. Ms. Jackson testified that Mr. Gonzalez’s behavior at the meeting prompted her to contact her direct superior, Program Administrator Sarah Evans, to discuss the matter. Ms. Evans decided to informally investigate what happened at the meeting. First, Ms. Evans attempted to phone Mr. Gonzalez to get his version. When she was unable to reach him by phone, Ms. Evans sent an email to Mr. Gonzalez asking him to call her. Ms. Evans then proceeded to contact the other employees who were at the meeting. One employee, Tania Membreno, told Ms. Evans that she preferred not to get involved in the matter. Two other employees, Adam Wiman and Stacey Macon, confirmed Ms. Jackson’s version of events. Mr. Wiman told Ms. Evans that the meeting had been “awkward” and that Mr. Gonzalez was rude to Ms. Jackson, continually interrupting her. Mr. Macon told Ms. Evans that he felt uncomfortable during the meeting because Mr. Gonzalez was unprofessional and rude to Ms. Jackson. When Ms. Evans eventually reached Mr. Gonzalez by phone, he refused to give her any information about the meeting without a union representative and Robin Rega, a Department of Health Labor Relations Consultant, present. Mr. Gonzalez hung up on Ms. Evans. Ms. Evans and Ms. Jackson prepared a “supervisor counseling memorandum” to be presented to Mr. Gonzalez because of his behavior at the October 24, 2019, meeting. On October 31, 2019, Ms. Evans and Ms. Jackson met with Mr. Gonzalez and explained that they were providing him with the memorandum as a reminder to remain professional and courteous in the office. Mr. Gonzalez reacted by stating that he was never unprofessional. He attempted to veer the conversation off onto a discussion of another employee whom he believed was unprofessional. Mr. Gonzalez refused to sign the memorandum, though Ms. Evans explained that his signature would only indicate that he had received the document, not that he agreed with its contents. Mr. Gonzalez did agree to take a copy of the memorandum before he left the meeting. The supervisor counseling memorandum was not made part of Mr. Gonzalez’s employment record and did not constitute adverse employment action or disciplinary action against Mr. Gonzalez. It was merely a reminder to Mr. Gonzalez of the behavior and deportment expected of Division employees. The Department of Health’s personnel policy defines “counseling” as “[a] discussion between a supervisor and an employee that identifies a problem, clarifies expectations and consequences, and provides direction for the resolution of the problem.” The Department of Health’s personnel policy does not treat counseling as disciplinary action. Meetings held by supervisors to counsel employees are not considered investigatory interviews, and employees covered by a collective bargaining agreement do not have the right to union representation during counseling meetings. THE GRIEVANCE AND EMPLOYMENT COMPLAINT OF DISCRIMINATION The supervisor counseling memorandum gave Mr. Gonzalez 60 days to respond in writing, if he wished. Mr. Gonzalez decided to file a formal Career Service employee grievance pursuant to section 110.227(4), Florida Statutes. On November 4, 2019, Mr. Gonzalez obtained a grievance form and a copy of the Department of Health’s employee grievance policy from Ms. Rega. On November 12, 2019, Mr. Gonzalez forwarded his completed Career Service employee grievance form, with attached exhibits, to Ms. Jackson via email, with copies to Ms. Evans, Ms. Rega, Mr. Gonzalez’s union representative, and a representative of the FCHR. On its face, Mr. Gonzalez’s grievance complained of “discrimination of age, gender, ethnic [sic].” The six-page narrative attached to the grievance gave Mr. Gonzalez’s version of the events of October 24, 2019, and the subsequent supervisor counseling memorandum. The narrative also alleged that Ms. Jackson had arranged the furniture in Mr. Gonzalez’s office in a way that aggravated his claustrophobia, then refused to allow him to move the furniture. He alleged that Ms. Jackson would not approve his request to take annual leave over the Christmas holidays. He alleged that Ms. Jackson had wrongly asserted that she possessed the authority to deny Mr. Gonzalez’s Family Medical Leave Act (“FMLA”) leave requests. He alleged that the Division had unfairly cut his pay when he moved from OPS to Career Service. Finally, Mr. Gonzalez alleged that persons unknown were sabotaging his efforts to obtain other jobs within the Department of Health. Specifically, he believed he was being denied a veteran’s preference in his applications for other positions in the agency.2 Mr. Gonzalez’s narrative did not explain how any of the actions of which he complained constituted age, gender, or ethnic discrimination, aside from the fact that Kimberly Jackson is a black female. The only solution requested by Mr. Gonzalez in his grievance was for individuals in the Division to “Quit harassment, stalking, and scrutiny; Treatment like other employees; Get my original starting pay, and 10% for violating veterans preference.” The Department of Health’s grievance policy and section 110.227(4) specifically exclude discrimination claims from the Career Service grievance process. Discrimination claims are routed to the agency’s Equal Opportunity Office. On that jurisdictional basis, Ms. Jackson denied the grievance on November 18, 2019. Brenshinita McGee, Manager of the Department of Health’s Equal Opportunity Office, testified that her office investigated the allegations contained in Mr. Gonzalez’s grievance. However, before an investigative memorandum could be completed, Mr. Gonzalez filed an Employment Complaint of Discrimination with the FCHR. This action changed the Equal 2 Mr. Gonzalez’s narrative also included allegations that a Division employee was stalking him and that he was under intense surveillance by his superiors following the issuance of the supervisor guidance memorandum. Mr. Gonzalez presented no testimony or other evidence regarding these allegations, which are therefore found to have been abandoned. Opportunity Office’s role from investigating an internal complaint to responding on behalf of the Department of Health to an external complaint. On February 21, 2020, Mr. Gonzalez filed his Employment Complaint of Discrimination with the FCHR, attaching a copy of his grievance and all supporting information that had previously been sent to Ms. Jackson. On February 28, 2020, Ms. McGee sent an email to Kendricka Howard, an Investigation Manager with the FCHR, requesting clarification as to the issues associated with Mr. Gonzalez’s case. Ms. Howard responded: “The issues associated with this case are: Discipline, Failure to Accommodate, Failure to Hire, Failure to Promote, Terms/Conditions and Wages.” DISCIPLINE The only record evidence of anything resembling a disciplinary action against Mr. Gonzalez was the supervisor counseling memorandum. As found above, a supervisor counseling memorandum is not disciplinary action. There is no evidence that Mr. Gonzalez has ever been disciplined by the Division. Mr. Gonzalez suffered no adverse employment action as a result of the supervisor counseling memorandum or the meeting with his supervisors on October 31, 2019. FAILURE TO ACCOMMODATE The Division stipulated that Mr. Gonzalez suffers from a disability or handicap. However, no evidence was presented to show that Mr. Gonzalez ever requested an accommodation from the Department of Health’s Equal Opportunity Office or that the Department of Health failed to accommodate him. The closest thing to an accommodation claim was Mr. Gonzalez’s allegation that Ms. Jackson would not allow him to move the furniture in his office to alleviate his claustrophobia. At the hearing, Ms. Jackson reasonably explained that all Division office employees are prohibited from moving their own furniture for reasons of personal safety. If employees wish to move their furniture, they must submit a request to the maintenance department. Ms. Jackson had no objection to Mr. Gonzalez reordering the furniture in his office. FAILURE TO HIRE OR PROMOTE Mr. Gonzalez alleges that he was denied the veteran’s preference mandated by section 295.07, Florida Statutes, and Florida Administrative Code Chapter 55A-7, when applying for other positions within the Department of Health. In support of this claim, Mr. Gonzalez referenced applying for three positions between February and March 2018.3 In February 2018, Mr. Gonzalez applied for a Regulatory Specialist II position in the Department of Health’s Office of Medical Marijuana Use. At the hearing, it was established that the Office of Medical Marijuana Use is separate and distinct from the Division. No one in the Division had any decision making authority or advisory role as to who was chosen for the Office of Medical Marijuana Use position. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his application for the Office of Medical Marijuana Use position. In March 2018, Mr. Gonzalez applied for a Medical Disability Examiner position with the Division. In accordance with statutory and rule requirements, Mr. Gonzalez received an additional five points as a veteran’s preference, but failed to score well enough on the work sample portion of the interview to warrant an in-person interview. There was no evidence that the Division committed any adverse employment action or discriminated against 3 In all of these applications, Mr. Gonzalez declined to provide information as to his gender, race, ethnicity, or age. As to these job applications, Mr. Gonzalez did not claim unfair treatment on any basis other than the veteran’s preference. Mr. Gonzalez with respect to his application for the Medical Disability Examiner position. In March 2018, Mr. Gonzalez applied for a Management Review Specialist position with the Division. The notice for the position specifically stated: “Current employment with the Division of Disability Determinations processing federal Social Security claims is required.” At all times during his employment with the Department of Health, Mr. Gonzalez has been a switchboard operator for the Division. He did not meet the minimum qualifications for the Management Review Specialist position. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his application for the Management Review Specialist Position. TERMS, CONDITIONS, AND WAGES Mr. Gonzalez’s reduction in salary after his voluntary transition from OPS to Career Service was neither adverse employment action nor discriminatory. This reduction in salary was consistent with the Division’s practice for all employees. The Director of the Division, Brian Garber, testified that OPS switchboard operators are paid slightly more than Career Service operators to compensate for the facts that OPS employees do not get paid time off for holidays, do not accrue sick leave or annual leave, and do not participate in the State of Florida’s retirement system. When an OPS operator transitions into Career Service, his or her salary is reduced, but other benefits are obtained that offset the salary reduction. Mr. Gonzalez did not dispute that he received benefits when he transferred from OPS to Career Service, including paid leave, paid holidays, discounted insurance options, and retirement benefits. Mr. Garber testified that he specifically requested that Mr. Gonzalez be paid more than other starting switchboard operators because he speaks Spanish. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his wages as a Career Service employee. Mr. Gonzalez claimed that a vacation request was not approved “until [he] had to take measures to HR.” On October 16, 2019, Mr. Gonzalez submitted a request for annual leave the week of Christmas 2019. Ms. Jackson approved his request on November 18, 2019, six days after Mr. Gonzalez filed his complaint with the FCHR. At the hearing, Ms. Jackson explained the delay in approving Mr. Gonzalez’s leave. As the Christmas and New Year’s holidays approach, Ms. Jackson asks all of her subordinates to submit their leave requests by a date certain so that she can arrange for all positions to be covered during that period. She did not approve Mr. Gonzalez’s request until all of her other subordinates had submitted their requests. Ms. Jackson also noted that approval of Mr. Gonzalez’s particular request was contingent upon his accumulating sufficient leave hours before the requested vacation time arrived. In any event, there was no evidence that Mr. Gonzalez was treated disparately or discriminatorily as to his leave requests. The record established that Ms. Jackson has approved every request Mr. Gonzalez has made to use annual leave. Mr. Gonzalez claimed disparate and discriminatory treatment in how his workload is determined, alleging that he was given much more work than the other switchboard operators. The credible evidence reflected that Mr. Gonzalez’s workload is distributed evenly with other switchboard operators. Mr. Gonzalez’s claim about Ms. Jackson’s interfering with his right to take FMLA leave was premised on nothing more than a misunderstanding. On August 21, 2019, at 2:53 p.m., Mr. Gonzalez sent an email to Ms. Jackson stating that he would be absent from work on September 6, 2019, due to a medical procedure. The text of the email did not mention FMLA, though the subject line did read, “Medical Procedure/FMLA.” Ms. Jackson overlooked the subject line and responded to the text, inquiring whether Mr. Gonzalez had submitted a leave request for the date in question. When Mr. Gonzalez responded in the negative, Ms. Jackson nonetheless approved the leave, still not realizing it was FMLA leave and her approval was not required. The approval was given at 3:08 p.m., on August 21, 2019, 15 minutes after Mr. Gonzalez sent his initial email. At the hearing, Ms. Jackson acknowledged her error. Mr. Gonzalez made no showing that he suffered any actual harm from Ms. Jackson’s mistake. Mr. Gonzalez alleged that he has been “given a difficult time when [he tries] to make up [his] time from doctor’s appointments.” This allegation was not supported by record evidence. Ms. Jackson employs a request and approval process for all employees who wish to “adjust their time,” i.e., make modifications from the normal 8:00 a.m. to 5:00 p.m. schedule. The record evidence shows instances in which Mr. Gonzalez properly requested to adjust his time and other instances in which he made time adjustments without prior approval from Ms. Jackson. In neither situation was Mr. Gonzalez “given a difficult time” by Ms. Jackson. To the contrary, the evidence indicates great forbearance by Ms. Jackson in allowing Mr. Gonzalez to adjust his time for doctor’s appointments. Ms. Jackson has no control over the availability of overtime hours. When she is notified by her superiors that overtime is available in her section, Ms. Jackson makes it available equally to all of her subordinate employees. The record indicates that Mr. Gonzalez has both accepted and declined the offers of overtime. There was no evidence that Mr. Gonzalez has ever been denied an opportunity to utilize overtime when it was available. COMPARATOR EMPLOYEES Mr. Gonzalez has not shown that any other employee outside of the protected classes claimed in his FCHR complaint have been treated differently than he has. Mr. Gonzalez actually highlighted the fact that he and several of his OPS counterparts were treated equally when they moved over to Career Service as a group in 2016. The evidence supports a finding that the policies and procedures implemented and reinforced by Ms. Jackson and her supervisors in the Division apply equally to all employees. SUMMARY OF FINDINGS In sum, Mr. Gonzalez’s complaints bespeak a general dissatisfaction with the decisions of his supervisors, in particular his immediate superior, Ms. Jackson. However, disagreements with those in authority do not support claims of discrimination, particularly where the employee cannot establish that he or she has suffered any adverse effects from the disputed decisions. Mr. Gonzalez failed to establish that he was subjected to any adverse employment action by the Division. Mr. Gonzalez offered no evidence that he was treated differently than any other similarly situated employee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Health, Division of Disability Determinations did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 4th day of February, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Dee Dee McGee, EO Manager Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 Rodolfo Gonzalez 2000 Lohman Court Tallahassee, Florida 32311 Louise Wilhite-St Laurent, General Counsel Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399 Virginia Edwards, Esquire Department of Health Prosecution Services Unit Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
