The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue Whether Petitioner was wrongfully terminated from her position as a payroll clerk with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Prior to November 1994, Petitioner was employed by Markings and Equipment Corporation, first as a receptionist, later as a payroll clerk for several years. She had a good working relationship with management and staff. In November 1994, Edward T. Quinn and two other investors purchased the assets of Markings and Equipment Co. and established a new corporation named Mill-it Striping, Inc., a Florida corporation. On November 7, 1994, Mill-It Striping began operations. Edward T. Quinn was named Vice-President and Chief Operating Officer. Petitioner and one other person were retained as office staff. Other employees of the former owner were retained as field workers in their same positions. Petitioner and the other employees were retained on a 90-day probationary period. All employees were required to complete application forms for the new company. The organization of the company was revamped and operating policies were changed. Petitioner and Quinn became embroiled in disputes over policy and procedures on a nearly daily basis. Quinn's management style was gruff and unprofessional. Foul language was directed toward Petitioner's work by Quinn on a regular basis. There was insufficient evidence to prove that Quinn's derogatory remarks of a social nature were directed toward Petitioner. On December 5, 1994, Petitioner was terminated from her position as a payroll clerk. Quinn alleged that Petitioner was terminated because of her poor work performance and reporting to work late on more than one occasion while on probation. Petitioner, who is an African-American female, was replaced in her position by a Caucasian female. Respondent's company presently has been administratively dissolved, as of September 24, 1999. There is no evidence that the corporation is active, is a subsidiary to another company, or that it has any remaining assets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000. COPIES FURNISHED: Azizi M. Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Edward T. Quinn as former Vice President Mill-It Stripping, Inc. 107 Shore Drive Longwood, Florida 32779 Valerie A. Roberts Post Office Box 543 Maitland, Florida 32751 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Eden Cabaret (“Respondent” or “Eden Cabaret”), is liable to Petitioner, Terry Doss (“Petitioner”), for employment discrimination in violation of the Florida Civil Rights Act of 1992, sections 760.01 through 760.11, Florida Statutes (2019).1 1 Except as otherwise noted, all references to the Florida Statutes herein, are to the 2019 version, which was in effect when the actions complained of in Petitioner’s Complaint occurred.
Findings Of Fact Petitioner is a black male who currently resides at 12 Adkinson Drive in Pensacola, Florida. Petitioner holds a certification in heating, ventilation, and air conditioning (“HVAC”) repair and maintenance. The evidence is unclear whether Petitioner is a licensed HVAC contractor. Respondent is an entertainment club in Pensacola, Florida, owned by Timothy McEvoy. The evidence is insufficient to establish how many employees are employed by Respondent. Mr. McEvoy came to know Petitioner through Mr. McEvoy’s girlfriend, Rachel Johnson, in June 2019. At that time, Petitioner had full-time employment, but needed rental housing and was available for extra part-time work. Mr. McEvoy owned a rental home at 7490 Rolling Hills Road in Pensacola and informed Petitioner that he could rent a room from him there for $150.00 per week. The rental home was partially occupied by Mr. McEvoy’s cousin, Kent Leyonmark, but another room was available in the home. Mr. McEvoy took Petitioner to the Rolling Hills property and showed him around. Mr. McEvoy introduced Petitioner to Mr. Leyonmark, suggesting that Petitioner may rent a room there. The rental arrangement at Rolling Hills did not work out, however, because, as Mr. McEvoy testified, Mr. Leyonmark is a racist and would not allow Petitioner to move into the house.2 Feeling obliged to Petitioner, Mr. McEvoy suggested Petitioner could rent a room at the five-bedroom home he and Ms. Johnson were then renting. Sometime in early June 2019, Petitioner moved into Mr. McEvoy’s rental home, occupying a bedroom with a private bath. No formal rental agreement, written or otherwise, was ever reached. Mr. McEvoy then hired Petitioner to do some HVAC work for him. Petitioner performed a number of jobs for Mr. McEvoy at Marcone Supply, a commercial business located in a building owned by Mr. McEvoy. Petitioner worked on the AC duct system, installed an air return, and completed an insulation job. Petitioner further found an airflow problem at the front of the store and repaired a restriction causing the problem at Marcone Supply. Over the next few weeks, Petitioner performed work for Mr. McEvoy at Eden Cabaret, as well as other rental properties owned by Mr. McEvoy, and at his beach house on Pensacola Beach. No formal employment agreement was reached between the two men. Typically, Petitioner sent a text to Mr. McEvoy informing him that Petitioner was finished with his regular job and asking if Mr. McEvoy needed him for any work. After Petitioner informed Mr. McEvoy that he had worked approximately 20 hours, Mr. McEvoy told Petitioner, “It would be best if you 2 Mr. McEvoy’s testimony is entirely hearsay, but is not being used to prove that Mr. Leyonmark is a racist, and no finding is made in that regard, but is limited to show that, for whatever reason, Petitioner did not take a room at the Rolling Hills property. keep a sheet with start and stop time and [a] brief description of what you worked on by day.” When Petitioner had worked 37 hours, he texted Mr. McEvoy, “Didn’t know when you was [sic] going to pay me the hrs. I work [sic].” He also stated, “I also old [sic] y’all some rent.” Later, Petitioner sent a text asking Mr. McEvoy, “Did u need money for rent[?]” The evidence does not support a finding that Mr. McEvoy responded to that text message. Mr. McEvoy never paid Petitioner for the hours he worked. Petitioner never paid Mr. McEvoy any rent. In addition to staying at Mr. McEvoy’s home rent-free, Petitioner had the use of a car owned by Mr. McEvoy. Petitioner used the car to get to and from work—both his first job and the second part-time work he did for Mr. McEvoy. Mr. McEvoy testified that he allowed Petitioner to use the car because the rental house was not near a public bus route. At Petitioner’s prior residence he took the bus to work. Petitioner purchased gas for Mr. McEvoy’s car. Petitioner also inquired about buying the car from Mr. McEvoy. But, Petitioner never paid anything to Mr. McEvoy for using the car. In early July, Mr. McEvoy informed Petitioner that the house they were all living in had been put on the market for sale by the owner. Mr. McEvoy and Ms. Johnson, who was pregnant at the time, planned to move before the baby was born. In July, Mr. McEvoy informed Petitioner, “[W]e have committed to be out of here by the end of this month so you should plan accordingly.” Petitioner lived with Mr. McEvoy and Ms. Johnson for four to six weeks. During that time period, Petitioner worked a total of 73.5 hours on repairs and maintenance at several properties owned by Mr. McEvoy, including Eden Cabaret. When Petitioner requested, via text message, to be paid for the hours worked, Mr. McEvoy asked Petitioner to call him to discuss the issue. Mr. McEvoy did not contest the number of hours Petitioner worked, but wanted to discuss “where we stand for the work you did vs. the housing and transportation we provided.” The two men never discussed the issue face-to-face, and never came to an agreement in a series of text messages either. When asked by the undersigned how Mr. McEvoy’s failure to pay him was related to his claim of discrimination, Petitioner explained that he was the only black man that worked for Mr. McEvoy and that Mr. McEvoy paid all his other employees. Petitioner did not introduce any evidence of particular individuals employed by Respondent, what type of work they performed, or their rate of pay. Mr. McEvoy claims Petitioner was never Respondent’s employee. Rather, Mr. McEvoy testified that he engaged Petitioner, as he does many workers, as an independent contractor to work on any number of properties he owns.
Recommendation Based upon the Findings of Fact and Conclusions of Law herein, the undersigned RECOMMENDS that the Commission issue a final order finding that Petitioner, Terry Doss, failed to prove that Respondent, Eden Cabaret was his employer, and dismiss Petition for Relief No. 2021-26984. protected class; (2) he was qualified for the position held: (3) he was subjected to an adverse employment action; and (4) other similarly-situated employees, who are not members of the protected group, were treated more favorably than Petitioner. See McDonnell-Douglas, 411 U.S. at 802. Petitioner met the first two elements: he is a member of a protected class; and is qualified to work in maintenance of HVAC systems. However, Petitioner is unable to prove the third element, that he suffered an adverse employment action. The evidence was persuasive, and is accepted, that Petitioner was compensated for the work he performed in the form of lodging and transportation, and not monetarily. Assuming, arguendo, Petitioner was subjected to an adverse employment action, he failed to prove the fourth element, that similarly-situated employees, who are not members of the protected class, were treated more favorably. For purposes of proving disparate treatment, a comparator must be similar to Petitioner in “all material respects.” See Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1217 (11th Cir. 2019). Similarity among comparators is required for the comparisons to be meaningful. Petitioner testified generally that other white employees were paid by Mr. McEvoy for their work. However, he did not introduce any specific comparators who were similarly- situated. Petitioner did not introduce evidence of the treatment of any non-black workers who had the use of rooms at Mr. McEvoy’s rental home or use of Mr. McEvoy’s personal vehicle. Petitioner failed to prove discrimination in compensation based on his race. DONE AND ENTERED this 29th day of July, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK 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 29th day of July, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Timothy McEvoy Eden Cabaret 4001 North Davis Highway Pensacola, Florida 32503 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Terry Lynn Doss 12 Adkinson Drive Pensacola, Florida 32506 Timothy McEvoy Post Office Box 32562 Gulf Breeze, Florida 32562
The Issue The issue is whether Respondent, Mojo Old City BBQ ("Mojo"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on his gender.
Findings Of Fact Mojo is an employer as that term is defined in section 760.02(7), Florida Statutes. Mojo owns and operates a restaurant at 5 Cordova Street in St. Augustine. Mojo has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, gender, national origin, or any other categories of persons protected by state or federal anti- discrimination laws. The policies also provide a specific complaint procedure for any employee who believes that he or she is being discriminated against or harassed. At the time of his hiring, Petitioner received an orientation that thoroughly explained the anti-discrimination and reporting policies. Testimony at the hearing established that Petitioner was again informed of these policies at an employee insurance meeting held in October 2013. Petitioner, a black male, was hired by Mojo on August 2, 2013, as a dishwasher. Petitioner testified that “from day one” he was called names and harassed by everyone at Mojo, employees and managers alike. He stated that an employee named Linwood Finley would yell that he didn’t want to work with a man who looked like a girl, or a “he/she.” Mr. Finley said, “I don’t want to work with a man that can't have kids.” Petitioner testified that the managers and staff would accuse him of looking between their legs. Employees would walk up to him and try to kiss him. He was told that he had to go along with these antics or find somewhere else to wash dishes. Petitioner testified that he believed he was fired for refusing to kiss other male employees. He had seen Mr. Finley and another male employee kissing behind the restaurant. He stated that two male employees had tried to kiss him and he refused their advances. Petitioner testified that he complained about the kissing to anyone who would listen. He said, “I’m not a woman, I’m a man. I got to come in here every day to the same stuff over and over. Y’all act like little kids.” Petitioner stated that when he complained, the harassment would stop for the rest of that day but would resume on the following day. Petitioner testified that there is a conspiracy against him in St. Augustine. For the last five years, he has been harassed in the same way at every place he has worked. Petitioner specifically cited Flagler College, the Columbia Restaurant, and Winn-Dixie as places where he worked and suffered name calling and harassment. Petitioner testified that he wanted to call several employees from Mojo as witnesses but that he was unable to subpoena them because Mojo refused to provide him with their addresses. Petitioner could provide no tangible evidence of having made any discovery requests on Mojo. Petitioner was terminated on November 29, 2013, pursuant to a “Disciplinary Action Form” that provided as follows: Roderick closed Wednesday night2/ in the dish pit. Again we have come to the problem with Roderick not working well with others causing a hostile work environment. This has been an ongoing issue. This issue has not resolved itself, and has been tolerated long enough. Roderick has been talked [to] about this plenty of times and written up previously for the same behavior. The documentary evidence established that Petitioner had received another Disciplinary Action Form on October 2, 2013, providing a written warning for insubordination for his hostile reaction when a manager asked him to pick up the pace in the evening. Laura Jenkins, the front-house supervisor at Mojo, was present at Mojo on the night of November 27, 2013. She testified that Petitioner had a history of getting into arguments with other kitchen employees that escalated into screaming matches during which Petitioner would commence calling the other employees “nigger.” Ms. Jenkins stated that on more than one occasion she had asked Petitioner to cease using “the ‘N’ word.” On the night of November 27, Petitioner was running behind on the dishes, so Ms. Jenkins asked another kitchen employee, Colin Griffin, to pitch in and help him. Petitioner did not want the help and argued with Mr. Griffin. Ms. Jenkins testified that Petitioner was screaming and cursing. The situation was so volatile that Ms. Jenkins felt physically threatened by Petitioner. She was afraid to discipline him that evening while she was the sole manager in the restaurant. On November 29, Ms. Jenkins met with kitchen manager Billy Ambrose and general manager Linda Prescott. They decided that Petitioner’s actions could not be tolerated anymore and that his employment would be terminated. Mr. Ambrose testified that on several occasions he sent people to help Petitioner in the dish pit and Petitioner refused their help. Petitioner would get into arguments with other employees over such things as the proper way to stack dishes. Mr. Ambrose named four different employees, including Mr. Finley, whom he sent to help Petitioner. Each one of them reported that Petitioner started an argument. Mr. Ambrose stated he went in to help Petitioner himself on one occasion and that Petitioner “kind of gave me attitude” despite the fact that Mr. Ambrose was his supervisor. Mr. Ambrose testified that Petitioner had an argument with Mr. Finley one morning that resulted in Mr. Ambrose having a cautionary talk with both employees. Mr. Ambrose sent Mr. Finley to help Petitioner in the dish pit. Petitioner stated, “Nigger, I don’t need your help.” Mr. Ambrose asked if there was a problem. Petitioner said, “No, we’re fine.” Mr. Ambrose asked Mr. Finley if everything was all right. Mr. Finley replied, “Yeah, I guess he’s just having a bad day.” Mr. Ambrose returned to his work only to find, five minutes later, that the two men were nose to nose arguing about the fact that Mr. Finley wasn’t washing dishes the way Petitioner liked. Ms. Jenkins, Mr. Ambrose, and Ms. Prescott all testified that they had never seen another employee harass Petitioner and had never heard of such a thing occurring. Petitioner never complained to any of these supervisors about discrimination or harassment of any kind. All three testified that they had never seen male employees kissing one another on the job nor seen any male employee attempt to kiss Petitioner. The three supervisors never heard any employee make comments about Petitioner’s appearing to be a girl. Ms. Jenkins testified that as a gay woman she would absolutely not allow any discrimination based on Petitioner’s gender orientation. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Mojo for his termination. Petitioner offered no credible evidence that Mojo's stated reasons for his termination were a pretext for discrimination based on Petitioner’s gender. Petitioner offered no credible evidence that Mojo discriminated against him because of his gender in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Mojo. There was no credible evidence that Petitioner ever complained to a superior about the alleged harassment.
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 Mojo Old City BBQ did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 23rd day of February, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 February, 2015.
The Issue Whether Respondent engaged in an unlawful employment action as alleged by Petitioner and, if so, what relief should be granted.
Findings Of Fact Petitioner is a black male. He identifies himself variously as a "Caribbean black," "Jamaican," and "Rastafarian." Respondent conducts its business at Port Everglades, a major Florida seaport (Port Everglades or the Port). Respondent's business is to service passenger and commercial shipping by transporting and loading cargo in and about Port Everglades. Respondent is an employer within the meaning of the applicable statutory provisions. Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when he was terminated. At all relevant times, Lizabeth Divers (Divers) has been Respondent's Director of Human Resources. In that capacity she was responsible for Respondent's personnel matters as well as its compliance with the FCRA. Her job includes, at all relevant times, hiring and firing; employee discipline; implementing company polices; and receiving and investigating complaints lodged verbally or in writing by employees about any matters affecting their employment.1 At all times material to this case, Petitioner was aware of his right to lodge complaints verbally or in writing with Divers with respect to any matter affecting his employment, including any alleged unlawful employment practice. At no time prior to his termination did Petitioner do so. The record contains no persuasive evidence concerning the composition of Respondent's workforce by race, national origin, religion, or any other classification relevant to Petitioner's claim against Respondent under the FCRA. As previously noted, Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when his employment was terminated by Divers for violating a company policy prohibiting possession of firearms or other weapons on Port property (the weapons policy). All of Respondent's employees, including Petitioner at all times material to this case, gain access to Port Everglades only by passing a security checkpoint. A security guard thereupon confirms that the individual has current port identification and parking decal. Once cleared to enter the Port, Respondent's employees have access to the entire Port, and are generally not under direct supervision as they perform their jobs. Respondent's weapons policy is grounded in reasons that were obvious to any employee, and which had to have been obvious to Petitioner. The need for such a policy is self-evident. There is no evidence that any other person employed by Respondent has ever violated the weapons policy. At relevant times Petitioner was licensed by the state to carry a concealed weapon. State licensure does not constitute authorization for Petitioner to ignore Respondent's weapons policy. Petitioner had no job-related reason to carry a gun. Petitioner's job was to drive a truck known to seaport workers as a "mule." Mules are used to transport cargo from one location to another. Petitioner's basic job duty was to drive box loads of material from one location to another at Port Everglades. Petitioner was qualified to do his job and performed his duties adequately with no prior disciplinary record. Divers was unaware of Petitioner's alleged violation of the weapons policy until the start of the business day on Monday, October 29, 2003. At that time, it was brought to her attention that one or more of Petitioner's co-workers had confronted him over the weekend regarding a bulge at his waist, and that Petitioner had confirmed that the bulge was a gun. Divers felt this alleged violation of the weapons policy was a serious accusation which, if true, would warrant immediate termination. She also felt that it posed a potentially life-threatening situation. Divers determined that Petitioner was scheduled to work that day. Divers immediately left her office and proceeded to the Broward County Sheriff's Office (BCSO) Port Everglades precinct to advise of the potential security threat. Divers sought BCSO's assistance in addressing this unprecedented and potentially dangerous situation. BCSO immediately provided assistance in the form of three armed deputies. Each officer drove his police vehicle to intercept Petitioner on Port grounds. The officers interviewed Petitioner in the presence of Divers. Petitioner freely admitted that he regularly concealed his gun in his vehicle. Petitioner had access to his vehicle throughout his shift. The officers verified Petitioner's concealed weapons permit. Divers informed Petitioner and the officers that she was terminating Petitioner's employment. There is no persuasive evidence that Petitioner protested this action or complained that it was motivated by race, national origin, or religion. Instead, the evidence established that Divers made a decision she was authorized to make, i.e., to terminate Petitioner for his admitted violation of the weapons policy. The officers disassembled Petitioner's gun, placed it in the trunk of Petitioner's vehicle, and escorted Petitioner off the Port property. There is no evidence regarding who, if anyone, was hired to replace Petitioner following his termination. Petitioner has failed to show that any other similarly situated employee who violated the weapons policy was treated differently from Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and denying all relief requested therein. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2005.
The Issue The issue is whether Petitioner's Charge of Discrimination states a cognizable claim under the Florida Civil Rights Act of 1992, as amended in Sections 760.01-760.11 and 509.092, Florida Statutes.
Findings Of Fact Petitioner filed his original Charge of Discrimination with FCHR on March 6, 2000. He filed his amended charge on March 31, 2000, after talking to FCHR's staff on the telephone. Petitioner alleges that he experienced harassment and retaliation in the workplace because he "supported a co-worker Gary Farrell in reporting to the company about harassment he was receiving from Union Business Manager, Joe Nobles and past Job Steward, Richard Mason for quitting Local Union 1055." Petitioner's charge also alleges the following: Joe Nobles and Richard Mason retaliated against me by influencing most of the union members in the department to ostracize us by not talking to us or cooperating with us. Some co-workers have come to me and said they were told not to associate or cooperate with me, because I supported co-worker Gary Farrell in reporting harassment to Corporate Office. Petitioner's complaint did not allege discrimination or retaliation based on his race, color, religion, national origin, sex, age, handicap and/or marital status. Petitioner was given an opportunity to amend his complaint before the FCHR and failed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 31st day of July, 2000. COPIES FURNISHED: Ralph A. Peterson, Esquire Beggs & Lane, LLP Post Office Box 12950 Pensacola, Florida 32576-2950 R. John Westberry, Esquire Holt & Westberry, P.A. 1108-A North 12th Avenue Pensacola, Florida 32501 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
The Issue The central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether Respondent, Coastal Properties (“Respondent” or “Coastal Properties”), discriminated against Petitioner, Harry (Hal) Hingson (“Petitioner”), based upon his age and race in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509.092, Florida Statutes.1/
Findings Of Fact Petitioner is a Caucasian male who was 60 years old in May of 2014, when Respondent allegedly discriminated against him by terminating his employment because of his age. Respondent is a management company for third-party owners of apartment communities, home owners associations, and condominium associations. Respondent employed Petitioner as a maintenance worker at the Twin Oaks apartment complex, a 242-unit apartment complex in Tallahassee, Florida. On May 6, 2014, after work, Petitioner and his supervisor, Clint Creel, were involved in a physical altercation off the job site, while fishing together on a boat. After the boat returned to the dock, Petitioner went inside his home. Rather than securing himself in his residence and calling law enforcement, Petitioner retrieved a gun from his residence, exited his residence, and fired the gun multiple times at Mr. Creel. Mr. Creel was struck in the back of the leg by a bullet and received medical treatment for his gunshot wound. Although he was shot, Mr. Creel returned to work the next day. Petitioner did not return to work the day after the incident as he was seeking medical treatment for the injuries he sustained during the physical altercation. Two days after the shooting, Respondent terminated Petitioner's employment. The decision to terminate Petitioner was made by the Respondent's Vice-President, Ray Allen, in consultation with the President, Dennis Fuller, after Mr. Allen spoke to both Mr. Creel, and Petitioner, about the shooting. Respondent presented the undisputed testimony of Mr. Allen and Mr. Ray that Petitioner's employment was terminated to protect the safety of the other employees and the residents at the Twin Oaks property. Mr. Creel expressed concern about his safety to Mr. Allen if he had to continue working with Petitioner. Mr. Allen and Mr. Fuller also were concerned about the safety of Mr. Creel, as well as the other employees and residents, if Petitioner and Mr. Creel continued to work together. Petitioner's Discrimination Complaint alleges that Petitioner was discriminated against based on race and age. In particular, Petitioner alleges that he was discriminated against because he was terminated after the off-the-job altercation, but his younger supervisor was not. The evidence adduced at the final hearing, however, failed to substantiate Petitioner's claim of discrimination. Other than testifying that he at one time, prior to the incident, was told that he was moving slow and at another time was told he was acting feeble, Petitioner did not present any direct or circumstantial evidence sufficient to reasonably suggest that Respondent discriminated against him in employment because of his age. Even if Petitioner had presented evidence sufficient to establish a prima facie case of age discrimination, Respondent provided a legitimate non- discriminatory reason for terminating Petitioner's employment. Petitioner admitted that Mr. Allen advised him that he was being terminated because he no longer wanted Petitioner and Mr. Creel to work together. Petitioner admitted Mr. Allen told him that he would have continued to employ Petitioner by moving him to another property, but there were no other openings. Respondent’s evidence demonstrated that the day after Petitioner was terminated, of its 59 employees, 25 were over the age of 40, 11 were over the age of 50, and one employee was older than Petitioner. The evidence also showed that 54 days after Petitioner was terminated, of Respondent’s 64 employees, 25 were over the age of 40, 10 were over the age of 50, and one employee was older than Petitioner. Petitioner failed to establish Respondent's reason for terminating his employment was a pretext for age discrimination. Petitioner's Discrimination Complaint further alleges he was discriminated against based on his race because another employee, a younger African-American, was arrested for DUI but was not terminated. Petitioner presented no evidence at the final hearing to substantiate that allegation, and Petitioner failed to present any evidence whatsoever to show that Respondent discriminated against Petitioner because of his race. In sum, Petitioner failed to show that Respondent discriminated against Petitioner by treating him differently, or terminating his employment because of his race or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2015.
