The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner was demoted from his position as a security officer, and later terminated from his position with the Respondent as a groundskeeper on or about May 22, 1995, on the basis of his race (Black) or sex (male), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner is an African-American male, and is licensed as a Class D security officer by the State of Florida. Respondent, Life Care Retirement Communities, Inc., is a not-for-profit corporation, based in Iowa, which owns Village on the Green, a community with 241 independent living units and 60 skilled health center beds in Longwood, Florida. Petitioner was hired by Respondent, on April 27, 1998, as a security guard at Village on the Green in Longwood, Florida. He worked in that capacity until May 12, 1995. In accordance with the company's standard procedure, all employees who have keys or access to resident's private property are required to have a criminal background check completed. Petitioner's position as a security guard required such a check. Petitioner signed a consent form and the background check was completed. The background check revealed that, in 1993, Petitioner was arrested for the felony of grand theft auto. The charge was later reduced from the misdemeanor charge of Trespass to a Conveyance. On May 17, 1994, Petitioner pled nolo contendere to the charge. Adjudication was withheld by the Court and Petitioner was placed on six months probation. Petitioner successfully completed probation. It is the policy of Respondent that an employee with a prior criminal record which involves theft may not be placed in a safety-sensitive position which permits employee access to a resident's living quarters or personal property. A security officer has such access. Petitioner was then informed that he would be removed from his position as a security guard. Petitioner was then offered a position in groundskeeping and Petitioner accepted. He was transferred to groundskeeping, at the same salary, and was employed from May 15, 1995, until May 22, 1995, at which time he was terminated. Between May 15 and May 22, 1995, Petitioner performed his job satisfactorily. On May 15, 1995, a severe electrical storm knocked out electricity to Petitioner's residence. As a result, Petitioner overslept and did not report to work at 7:00 a.m., the scheduled beginning of his shift. At approximately 8:00 a.m., Petitioner called the security guard on duty and advised her of the reason he was late and that he would not be in that day because the storm had caused damage to his automobile. The fact that Petitioner reported in on May 15th was not conveyed by the unidentified security guard to Petitioner's supervisor. Respondent's policy, as stated in the Employee Handbook, called "No show/no call," requires an employee to notify his supervisor if he is going to absent, or if he is unable to contact the supervisor, then he is to report his absence or tardiness to the switchboard operator. The Employee Manual, at page 45, states in pertinent part: ". . . Failure to report for duty without notification, failure to call in prior to shift change and tardiness will result in disciplinary action." After an internal investigation, which included an interview with Petitioner, Respondent was unable to determine that Petitioner had called in on May 15, 1995. Petitioner was terminated. Petitioner has failed to demonstrate that Respondent's reason for termination was pretextural, or that the employer engaged in unlawful hiring, firing, pay or promotion practices.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 3rd day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John V. Griffin 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1998. Director of Human Resources Life Care Retirement Communities, Inc. d/b/a Village on the Green 200 East Grand, Suite 390 Des Moines, Iowa 50309 Terrance Davenport 861 Carver Street Winter Park, Florida 32789 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, the City of DeLand, on account of his race, or as retaliation for engaging in protected activities in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of the City, is African-American. Respondent is a Florida municipality established pursuant to Article VIII, § 2(b), Florida Constitution and chapter 166, Florida Statutes. Respondent employs more than 15 full-time employees at any given time. Petitioner was initially employed by the City in April 2010 as a Maintenance Worker II in the Parks and Recreation Department. On February 21, 2012, Petitioner was terminated by the City for failing to report to work for a period of days. He was considered by the City to be a “no call/no show.” Petitioner filed a complaint with the federal Department of Labor (DOL), in which he asserted that his absence from work was authorized under the Family Medical Leave Act (FMLA). On April 26, 2012, Petitioner filed a complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) alleging that the City?s decision to terminate him was based on race and age discrimination. The complaint was transferred to the FCHR for disposition. The DOL determined that Petitioner?s absence from work was warranted by application of the FMLA, upon which the DOL and the City reached an agreement to resolve the DOL complaint. On July 9, 2012, as part of the agreement, Petitioner was reinstated as a Maintenance Worker II, with back pay and benefits. When the decision was made to reinstate Petitioner, Petitioner withdrew the FCHR complaint. At the time of Petitioner?s reinstatement, the City did not have an opening in its Parks and Recreation Department, his previous position having been filled. The City did have an opening for a Maintenance Worker II in its Utilities Department. The Utilities Department opening had been advertised, the interview process for the opening had been completed, and a candidate had been selected. However, as the result of the DOL settlement, Petitioner was selected to fill the position. Petitioner was placed on the mowing crew, and was responsible for keeping areas around the City?s lift stations, well houses, and wastewater plant mowed. On July 13, 2012, the City issued a written reprimand to Petitioner. The reprimand related to Petitioner?s complaints to the City Utilities Director, Mr. Ailes, regarding Petitioner?s assignment to the mowing crew and his supervisory chain-of-command. The memorandum suggested that Petitioner was not “a team player.” There was no evidence of further adverse action relating to Petitioner?s job performance. After Petitioner settled into the job, he performed well. He was a hard worker, and never had to be coaxed into working. Mr. Swanson described Petitioner as a “go-getter,” who came up with more efficient ways of keeping up with the work and making the areas look nice. Mr. Swanson testified that it was good to have a third person on the mowing crew. On or about July 13, 2012, an equipment operator position came open. It was advertised, and applications were accepted. Petitioner submitted an application for the position. Petitioner was selected as one of five applicants to continue with the interview process.1/ Among the applicants was Jose Alejo. Mr. Alejo is Hispanic. Petitioner and Mr. Alejo were employees of the City, and were considered as “in-house” candidates. The interview team consisted of Mikel Grimm, a foreman with the City?s Utilities Department; Obadiah Henry, a Utility Locator with the City?s Utilities Department; and Danny Pope, a Supervisor with the City. Mr. Henry had been a foreman with the City?s Utilities Department before a voluntary break in service, and had extensive experience as an equipment operator. As a former foreman, Mr. Henry had been on numerous interview committees for positions including equipment operator. He was considered to be the best qualified to serve on the interview committee, even though committee members were typically at the foreman level or higher. Mr. Henry is African-American. Mr. Grimm and Mr. Pope are white. Petitioner had no “issues” with any of the members of the interview team, or with any of the other foremen in the Utilities Department. Petitioner was working on the day that interviews were scheduled. He was taken off of his mower at between 11:00 a.m. and 12:00 p.m. for an interview scheduled for 2:00 p.m. Interviews consisted of a short oral interview, followed by a practical test in which the applicants were tested on a dump truck and a backhoe. The applicants were to drive the dump truck through a sort of “obstacle course” and, using a backhoe, dig a hole to a pre-established specification. The questions asked of each of the applicants during the interviews were identical. The equipment used and the layout of the practical test performed by each of the applicants were identical. Each of the members of the interview team independently prepared his own scoring evaluation, without comparison of notes, numbers, or scores of the other members. After the scoring was completed, the scores were tallied. Mr. Henry was surprised at how even the scores were between the evaluators for each of the applicants. Each of the members of the interview team generally thought Mr. Alejo performed better in the interview. As to the practical test, Mr. Alejo “just proved it on the machine that he was the better applicant.” In short, Mr. Alejo simply dug a better hole. Mr. Henry noted that the decision was based on how the applicant performed on that day. While he acknowledged that Petitioner, or one of the other applicants, may have performed better on another day, “that?s what I had to go off of was that day.” Mr. Henry testified credibly and convincingly that the interview team made the effort to handle the interviews in a professional and honest way. The interview team was not told by higher-level supervisors or anyone else who should be selected as the leading candidate. His testimony is credited. Mr. Henry testified that if he had seen any evidence of racial bias, he would have reported it. He saw none. The recommendation of the interview team was unanimous that the position of equipment operator should be offered to Mr. Alejo, who scored significantly higher than Petitioner. The City accepted the recommendation of the interview team, and offered the position to Mr. Alejo, who accepted.2/ The interview process, using standardized questions and procedures, has been the practice of the City for more than six years. The purpose of the interview and practical test process was to make the hiring process more equal, rather than being based on a “gut feeling” or on how someone may have “felt about the guy.” The interview and selection process raises no issue of discriminatory of retaliatory bias in its application. On or about September 14, 2012, Petitioner received an employee performance evaluation that Petitioner described as “a good evaluation.” During the period of time at issue in this proceeding, Petitioner did not complain to any co-worker or to supervisory staff that he was subject to discriminatory acts as an employee of the City. On May 3, 2013, Petitioner voluntarily resigned from employment with the City. The reason given by Petitioner was that he wanted to return to Minnesota. Petitioner had lived in Minnesota for 30 years, and planned to move back and get a job driving a truck. In his letter of resignation, Petitioner made no mention of any discriminatory or retaliatory act, stating that “[i]t has been a pleasure to work for the City.” The City currently employs six equipment operators. Of those, three are Hispanic, two are white, and one is African- American. Ultimate Findings of Fact The personnel decision to re-hire Petitioner to the position of Maintenance Worker II in the Utilities Department was made because there was an opening in that department. There was no competent, substantial evidence adduced at the hearing to support a finding that the decision was made due to Petitioner?s race, or in retaliation for Petitioner?s earlier EEOC complaint. The decision to hire an applicant other than Petitioner for the position of equipment operator was made after a reasonable and fair applicant interview and evaluation process that was done in accordance with the City?s established and objective hiring practices. There was no competent, substantial evidence adduced at the hearing that any persons who were not members of the Petitioner?s protected class, i.e., African-American, were treated differently from Petitioner, or were not subject to similar personnel policies and practices. There was no competent, substantial evidence adduced at the hearing that the City?s decision to hire Mr. Alejo over Petitioner was made in retaliation for Petitioner?s earlier EEOC complaint.
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, the City of DeLand, did not commit any unlawful employment practice as to Petitioner, Ray Neloms, and dismissing the Petition for Relief filed in FCHR No. 2012-02720. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 August, 2013.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Darryl Royster, was subjected to employment discrimination, by allegedly being terminated on the basis of his race or disability/handicap, by denial of a promotion and training, being subjected to discriminatory terms and conditions of employment, and by retaliation.
Findings Of Fact The Petitioner was employed by Pate Steveodore Company, Inc., (Pate) at times pertinent hereto. The Petitioner is an African-American male. Pate is a licensed Stevodore Company operating at the Port of Pensacola. Pate typically handles loading or unloading of various types of cargo, including soy beans, frozen food products, and other materials from railroad cars located in the port or onto ships berthed at the port. Pate has a staff of six permanent employees, including a president, vice-president, office manager, accounting clerk, and pier superintendent, as well as a part-time payroll clerk. Depending on the amount of work available at any particular time, Pate employs from 0 to 60 longshoremen, the majority of whom are African-American. The Petitioner was first employed by Pate in September 2005, as a longshoreman, responsible for loading and unloading box cars. Scott Miller is the former supervisor of the Petitioner. In his testimony he established that, typically, two teams of three longshoremen each would be assigned to load or unload each box car. The members of such teams work together to load or unload cargo from pallets, typically completing the unloading of two cars in a morning and two cars in the afternoon. The employees typically take breaks from the work in between pallets or box cars, but are allowed to take breaks whenever they feel the need. They arrange the schedule for taking breaks among themselves and without direction from supervisors. The Petitioner was working on August 2, 2006. On that date he contends that he suffered a back injury while lifting a 110 pound sack of beans. He states that he attempted to inform his supervisor, Mr. Miller, of the alleged injury, but was instructed to either return to work that day, or to leave if he was unable to do so. Mr. Miller was apparently frustrated with the Petitioner on that day because the Petitioner had left the work area on two occasions that morning for prolonged periods of time. The first time was when he went to the main office of Pate to discuss the fact that his child support payments were being withheld from his checks and to demand that the money be returned to him. The Petitioner wanted Pate to reimburse him for the withheld amounts and Pate explained to the Petitioner that they were legally required to make the deductions from his payroll. The second time that day he went to the main office to inform Mr. Pate that he had a job interview with an insurance company and would not be returning to work that afternoon after lunch. The Petitioner told Mr. Pate that he had already informed Mr. Miller that he would not be working that afternoon. Actually, he had never told Mr. Miller he was going to be absent in the afternoon. Because Mr. Miller did not have a replacement for the unexpected absence of the Petitioner, Mr. Miller had to perform the Petitioner's job loading and unloading cargo, during both the morning and afternoon absences. Mr. Miller told Mr. Pate of his dissatisfaction with the unexcused absences and having to perform the Petitioner's work himself. Pate did not hear from the Petitioner again until August 8, 2006, when Michael Pate, the company president, and Rosalee Garrett, the office manager, received a fax from the Petitioner requesting that they pass along certain information to the company's workers' compensation carrier, so that the Petitioner could be paid for the time he had been off work. The Petitioner informed Pate that he would be retuning to work the following week and attached a note from a medical clinic asking that he be excused from work until August 14, 2006. Ms. Garrett responded to the request and forwarded the requested information to the company's workers' compensation carrier. She also requested that the Petitioner report to the office so that he could complete an accident report form so that his workers' compensation claim could be properly processed. Pate's workers' compensation carrier's coverage policy and the workers' compensation law requires that an accident report be submitted by the claimant.1/ On August 11, 2006, the Petitioner wrote to Mr. Pate and Ms. Garrett informing them that he would not be able to return to work until October 20, 2006, because he was still experiencing back pain and rectal bleeding. The Petitioner wanted to wait until he could be seen by a doctor so that he could determine the source of those two problems. The Petitioner informed Mr. Pate and Ms. Garrett that he could perform light-duty work that did not involve bending or heavy lifting, such as running errands for the company, supervising other employees, and that he could also do work on the computer. Thereafter, on August 28, 2006, the Petitioner came to Pate's main office, again requesting light-duty work. There was no such work available, however, and Mr. Pate so informed the Petitioner. At that point the Petitioner became very upset and belligerent and began cursing Mr. Pate. Mr. Pate regarded that as threatening behavior and insubordination and was unwilling to tolerate such conduct. Mr. Pate escorted the Petitioner out of the office to converse with him outside, away from the other employees, because of his behavior, but was unsuccessful and thereupon terminated him. He told him to leave the premises, but ultimately had to call the port security office to have the port security personnel escort the Petitioner off the premises and outside the secure area of the Port of Pensacola. The testimony of Ms. Garrett corroborates that of Mr. Pate in establishing that the Petitioner was terminated because he became threatening, argumentative, and insubordinate toward Mr. Pate. In terms of his claim regarding racial discrimination, based upon allegedly different terms and conditions of employment imposed upon him, the Petitioner claims that he and other African-American employees were not allowed to take breaks or to train for and become forklift operators. The testimony of three witnesses, however, established that African-American employees are granted the same breaks as white employees and are otherwise treated the same with respect to the terms and conditions of their employment. The Petitioner was allowed to, and did take breaks during his employment with Pate. Moreover, contrary to the Petitioner's position, it was established, by persuasive, credible testimony, that in terms of the alleged issue concerning African-American employees not being allowed to become forklift drivers, that Pate conducted training so that such employees could become forklift drivers. Some employees took advantage of that training and became forklift drivers. In fact, the majority of Pate's forklift drivers are African-American. The Petitioner also contended that he was discriminated against in terms of his race for failure of Pate to promote or train him or other African-American employees. According to the preponderant, persuasive testimony and evidence presented at the hearing, however, there was no open position available at Pate, during the Petitioner's employment time there, to which he could have been promoted, nor had he ever applied for a promotion position. There was no denial of training opportunities because there was no training offered to any employee during the period of time of the Petitioner's employment with Pate and there was no evidence to show that the Petitioner ever requested training for any position at Pate. As found above, before the Petitioner became employed there, Pate did offer training for forklift drivers and trained some employees as forklift drivers, the majority of whom were African-American.
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 the 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 19th day of March, 2008, 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 19th day of March, 2008.
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
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 the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1992.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
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 for Relief in its entirety. DONE AND ENTERED this 3rd day of December, 2003, 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 3rd day of December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 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 Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986. Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987. Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes which Petitioner disagreed with and which were clearly not sexually discriminatory in nature. At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers. Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988. Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina. On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards. Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the petition against Respondent be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, sex, or as retaliation in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a 56-year-old African- American female, as a Food Support Worker at Florida State Hospital in Chattahoochee, Florida, at all times relevant to these proceedings. Petitioner was promoted to the position of Food Service Worker on May 10, 2002, with probationary status until May 10, 2003. On February 12, 2003, Petitioner was terminated from her employment for failure to satisfactorily complete her probationary period in the career service. In the course of her employment with Florida State Hospital, Petitioner was aware of the strict safety guidelines implemented by Respondent to protect employees from injury. Petitioner also knew that violation of the safety rules could result in dismissal of an erring employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. On February 9, 2003, due to an unsafe act and violation of Respondent’s safety rules, Petitioner proceeded to cut the tip of her left thumb in the process of slicing cabbage. Petitioner was not using a cutting glove, a mandatory requirement of the safety rules. As a result of this rule violation, Respondent terminated Petitioner’s employment on February 12, 2003. At final hearing, Petitioner admitted the cutting injury to her finger, but contended that termination of employment had not been effected for other younger white employees for similar offenses in the past. These allegations of Petitioner were non-specific and uncorroborated; they are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 3rd day of November, 2004. COPIES FURNISHED: Annette Carroll 10202 Northwest Third Street Bristol, Florida 32321 Kathi Lee Kilpatrick, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
