The Issue The issue is whether Grand Boulevard Health and Rehabilitation, d/b/a FL HUD Destin, LLC (“Grand Boulevard”), committed an unlawful employment practice by discriminating against Angela D. Jones based on her race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: Ms. Jones is a 49-year-old African American female. She has a high school degree and earned certifications or licenses enabling her to work as a certified nursing assistant (“CNA”), a home-health aide, a cosmetologist, and a security guard. However, healthcare has been her primary field of work. 2 Ms. Jones stated during the final hearing that she had transmitted to DOAH an audio recording made by Mr. Manning and that she had intended to move that audio recording into evidence. The audio recording was not received by DOAH. Nonetheless, the undersigned has determined that no prejudice resulted to Ms. Jones because there was no dispute regarding the event described by Mr. Manning’s affidavit. In May of 2019, Ms. Jones was working in a nursing home and heard from a coworker about the substantial benefits and signing bonus that Grand Boulevard was offering new hires. Grand Boulevard’s employment application contained a question asking each applicant to respond “yes” or “no” as to whether he or she had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre- trial intervention program as a result of being charged with a crime.” Ms. Jones left that portion of her application blank.3 Ms. Jones responded “no” in response to a question asking if she had “ever been convicted of any criminal violation of law, or [if she was] now under pending investigation or charges of violation of criminal law.”4 The employment application contained a provision requiring Ms. Jones to certify that: the information provided in this employment application (and accompanying resume, if any) is true and complete. I understand that any false, incomplete, or misleading information given by me on this form, regardless of when it is discovered, may disqualify me from further consideration for employment, and may be justification for my 3 Ms. Jones testified that she told Shakara Mayberry, Grand Boulevard’s Director of Staff Development at the time, that she had a criminal background and that she left that portion of the application blank because she could not remember specific details about the charges. Ms. Jones also testified that she offered to supplement her application with precise information after she had an opportunity to consult documentation in her possession. According to Ms. Jones, Ms. Mayberry accepted her application and told her to not worry about disclosing her criminal background. Ms. Mayberry also testified during the final hearing and denied telling Ms. Jones that she could leave that portion of her application blank. During the final hearing, Grand Boulevard provided no satisfactory explanation as to why Ms. Jones was hired without completing that portion of her application. 4 Respondent’s Exhibit 3 was Ms. Jones’s responses to interrogatories from Grand Boulevard. Via her responses, Ms. Jones provided documentation regarding her criminal history. However, Grand Boulevard did not request that Respondent’s Exhibit 3 be accepted into evidence. When being questioned about Respondent’s Exhibit 3, Ms. Jones acknowledged that she has: (1) pled no contest to a battery charge; (2) been charged or arrested for resisting an officer; (3) been arrested for criminal mischief; and (4) entered a plea on a different criminal mischief charge. dismissal from employment, if discovered at a later date. After conducting a background check through the Agency for Health Care Administration (“AHCA”) indicating Ms. Jones had no disqualifying offenses, Grand Boulevard hired Ms. Jones.5 Ms. Jones began working for Grand Boulevard on May 15, 2019, as a CNA helping nursing home residents with activities of daily living such as dental hygiene, grooming, and eating. On June 16, 2019, a resident in Ms. Jones’s care suffered injuries after he rolled out of his bed while Ms. Jones was cleaning him. Pursuant to its policy, Grand Boulevard suspended Ms. Jones while the Walton County Police Department investigated the incident. Ms. Jones returned to work at Grand Boulevard three days later but was suspended again on June 20, 2019, because she had allowed her CNA certificate to expire. Ms. Jones paid her delinquency fee, and her certificate was reinstated. During the course of the investigation of the June 16, 2019, incident, an investigator from the Walton County Sheriff’s Office asked Heather Hanna, Grand Boulevard’s Director of Nursing at the time, why Grand Boulevard would hire someone such as Ms. Jones with a criminal history. Ms. Hanna then had Ms. Jones’s application pulled and noticed that Ms. Jones did not 5 Section 400.9065, Florida Statutes, mandates that AHCA “shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.” Section 408.809(1)(e), Florida Statutes, requires level 2 background screening of any person who is expected to provide personal care services directly to nursing home residents. Section 435.04(2), Florida Statutes, lists many specific offenses that disqualify someone from working in a nursing home. Accordingly, the background screening conducted through AHCA is narrower in scope than Grand Boulevard’s employment application, which asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” For example, while Ms. Jones acknowledged that she has pled no contest to a battery charge, that charge would not necessarily have been a disqualifying offense because section 435.04(2) only encompasses felony battery, battery on a minor, sexual battery, and battery on a vulnerable adult. Likewise, resisting an officer and criminal mischief are not disqualifying offenses. respond to the question asking if she had ever been charged with a crime. Ms. Hanna sent the following report to Connie Zuraff on June 28, 2019: I received a visit from Investigator Donna Armstrong with Walton County PD and Julianne Dalton APS investigator. The investigator questioned why we would have an employee who had a recent arrest record, she stated that she knew Angela Jones from the community and that she was concerned that she was employed here. We reviewed her application and found that she had not checked the boxes related to history of arrests.[6] I called Ms. Jones with Tuwanna RN Risk Manager and [Shakara] Mayberry LPN SDC present in the room. I placed Ms. Jones on speaker phone and asked if she had been arrested for any recent criminal activity and she confirmed that she was arrested for battery, petty theft and fighting. I notified the employee that failure to disclose this information could lead to termination and suspended her at that time. The DCS did pull her background through the AHCA clearing house and we confirmed that she still showed eligible for employment. Grand Boulevard then suspended Ms. Jones and ultimately terminated her on June 27, 2019, on the basis that she “knowingly falsified [her] employment application.” There was no persuasive evidence of Grand Boulevard giving more favorable treatment to nonminority employees who neglected to fully disclose whether they had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” Any testimony from Ms. Jones on that point was 6 The pertinent question on the application does not require applicants to disclose arrests. The question asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” either unpersuasive, unsubstantiated, or insufficiently specific. Accordingly, the greater weight of the evidence does not demonstrate that Grand Boulevard committed an unlawful employment practice.
Conclusions For Petitioner: Angela D. Jones, pro se 115 Christie Lane Panama City, Florida 32404 For Respondent: David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602
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 Ms. Jones’s Petition for Relief. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of August, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Angela D. Jones 115 Christie Lane Panama City, Florida 32404 David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issues to be resolved in this proceeding are whether the Petitioner was discriminatorily dismissed from her employment by the Respondent on the basis of race and whether she was retaliated against by the Respondent for filing a complaint of discrimination with the City of Jacksonville.
Findings Of Fact The Respondent, the University of Florida, is a state university located in Gainesville, Florida. The Respondent, through its Institute of Food and Agricultural Sciences, operates a Cooperative Extension Service, which maintains a county extension office in each of the 67 counties in the State of Florida. Each of these offices is headed by a county extension director. On September 13, 1991, the Petitioner, Pamela R. Dallis, was hired by the University of Florida as a part-time secretary for the Expanded Food and Nutrition Education Program (EFNEP) in the Duval County Extension Office located in Jacksonville, Florida, which is headed by Mr. Thomas Braddock. The Petitioner was hired in a temporary position known as Other Personal Services (OPS). The Petitioner was initially interviewed for a permanent position, but she did not meet the minimum qualifications for the position because she did not achieve the required score (35 c.w.p.m.) on the typing test. The Respondent changed the classification of the position from permanent to temporary in order to be able to hire the Petitioner despite her typing deficiency. As an OPS employee, she did not have permanent status in the position and was not subject to a probationary period or to periodic written evaluations concerning her performance. The Petitioner's immediate supervisor, Ms. Deborah Patterson, provided the Petitioner training as to the policies and procedures applicable to her position. Specifically, the Petitioner received training concerning data entry, reimbursement of expenses incurred for EFNEP and travel reimbursement vouchers. The Petitioner was also provided assistance concerning computer data entry from another employee in EFNEP. The Petitioner was provided oral counseling concerning deficiencies in her performance on several occasions beginning on January 7, 1992. By June 22, 1992, Respondent considered dismissing the Petitioner from her employment because of her performance deficiencies. Due to budgetary constraints, the decision was made to work more closely with the Petitioner because if she were dismissed, there was no assurance that her position could be filled by another individual. On July 6, 1992, in order to provide closer supervision to the Petitioner, the Respondent moved the Petitioner's work station to a location close to her supervisor's office. Prior to this time, the Petitioner's immediate supervisor had requested to Mr. Braddock that this move be made. Mr. Braddock did not approve the request and recommended that the Petitioner be counseled concerning her work performance. In July, 1992, Mr. Braddock agreed to the move because the Petitioner's performance had not improved despite the performance counseling provided. On July 24, 1993, a few weeks after the Petitioner's work station was moved, she reported to Mr. Braddock an incident that had occurred with a white co-worker, Rachel Fleming. Mr. Braddock spoke separately with each employee and asked for their written description of the incident. There were no other witnesses to the incident. Mr. Braddock received conflicting reports from the Petitioner and Ms. Fleming. The Petitioner stated that on July 24, 1992, after informing Ms. Fleming of her dislike for "chain letters" while talking in the printing room, Ms. Fleming placed a chain letter on the Petitioner's desk with her name on it. The Petitioner scratched her name, placed Ms. Fleming's name on the letter and taped it on Ms. Fleming's desk drawer. The Petitioner stated that she later went to the restroom, and as she was exiting, Ms. Fleming came in, blocked her exit, pushed and grabbed her, and said, "I don't like you no more than you like me, bitch!" Ms. Fleming then allowed her to exit. Ms. Fleming acknowledged in her statement that she had an exchange of words with the Petitioner concerning a chain letter that she had given the Petitioner. Ms. Fleming stated that the Petitioner told her, "This is stupid and so are you." Ms. Fleming also stated that about 15 minutes later, she saw the Petitioner as she was leaving the restroom, asked to speak with her, but the Petitioner "brushed past her" saying nothing. Ms. Fleming grabbed the Petitioner, turned to face her and told her that they did not like each other and to "leave me the hell alone". Ms. Fleming denied pushing the Petitioner or calling her a "bitch". She said she called the Petitioner "a biddy". Based upon the unsubstantiated conflicting reports given by each employee, Mr. Braddock determined that no disciplinary action was warranted and counseled each employee. A few weeks after the incident with Ms. Fleming, the Petitioner filed a complaint of discrimination with the Equal Employment Opportunity Office of the City of Jacksonville on the basis that Ms. Fleming had not been disciplined. After having learned of the complaint, the Petitioner's second level supervisor, Ms. Halusky, advised the Petitioner that the proper avenue for her to file a complaint was through the University's Office of Equal Employment Opportunity, not the City of Jacksonville. The City of Jacksonville did not proceed with the Petitioner's complaint because she was not an employee of the City of Jacksonville. The Petitioner never filed a complaint with the University of Florida. Despite the performance counseling and assistance provided to the Petitioner, her performance did not improve. The deficiencies concerning the Petitioner's data entry skills continued. Two reports that were due in September, 1992 at the main EFNEP office in Gainesville were late because the work done by the Petitioner had to be redone. The Petitioner's supervisor decided that the Petitioner's continuing performance deficiencies were causing additional work for the EFNEP staff and, even without the assurance of a replacement, it was better to have the position vacant rather than having to redo the Petitioner's work to correct the mistakes. By letter dated September 10, 1992, the Petitioner's immediate supervisor advised her of her termination effective at the close of business that day. The reason given for her dismissal was that she had not developed in her job as expected and because of performance deficiencies. Sixty-six percent of the employees in EFNEP in the Duval County Office are African American. They serve a clientele that is 75 percent African American. Thus, EFNEP is interested in hiring and retaining African American employees for the program. Three of the individuals who testified at the Petitioner's request are African Americans who work at the Duval County Extension Office. They testified that they had not experienced discrimination in their employment at the Duval County Extension Office. Two of those three employees are in EFNEP. One has been an employee in the office for 23 years, and the other has been an employee for 14 years.
Recommendation Based on 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 RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER The Respondent's proposed findings of fact are all accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Pamela R. Dallis 8050 Arlington Expressway #C-401 Jacksonville, FL 32211 Isis Carbajal de Garcia, Esq. Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. 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 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road 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 committed an unlawful employment practice by discriminating against Petitioner based on his race.
Findings Of Fact In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors. Initially, Respondent paid Petitioner $7.25 per hour. Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent. Respondent eventually raised Petitioner's salary to $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises. Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed Ms. Collett that Petitioner had not come home with his pay check. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room. Petitioner could not find another job. He is now in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of May, 2009, 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 27th day of May, 2009. COPIES FURNISHED: Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465 Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 1326 South Ridgewood Avenue Suite 8 Daytona Beach, Florida 32114 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 Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner, a Caucasian male, was born on March 23, 1949. At the time of the alleged unlawful employment practice at issue in this case, Petitioner was 52-53 years old. Petitioner was employed by Respondent since 1973. He was terminated effective August 15, 2001. Respondent, at all times material to this case, is an employer within the meaning of the Florida Civil Rights Act. Respondent, at all relevant times, is in the business of providing telephone services to individuals and businesses in south Florida and elsewhere. At all relevant times, Petitioner was employed as a Service Technician. Service Technicians are responsible to install and repair telephone equipment in response to customer requests. At all relevant times, Respondent employs individuals as Service Technicians who are older than Petitioner. Many other individuals employed as Service Technicians are over the age of 40 at all times relevant to this case. Beginning in 1997, Respondent began to evaluate its Service Technicians according to a system called "Integrated Technicians Performance Plan [ITP].” The purpose of ITP was to improve customer service by evaluating Service Technicians and the individuals who manage them, on a regional basis, in accordance with standardized performance measures. Service Technicians whose ITP evaluations revealed deficiencies, including Petitioner, were provided assistance pursuant to individualized Technician Development Plans (TDP) and given a reasonable period of time to improve. From the time ITP was implemented in 1997, Petitioner was at all relevant times on a TDP because of deficiencies in his job performance. Petitioner's job performance was consistently deficient from 1997 throughout the remainder of his employment. From 1997 throughout the remainder of his employment Petitioner was provided assistance to help him improve his performance. Despite the assistance provided, Petitioner failed to improve his job performance to minimum levels required of all Service Technicians and required by his TDP. By August 2001, supervisors responsible for the training, evaluation and supervision of Service Technicians had determined that Petitioner did not maintain his job performance at the minimum levels required of Service Technicians and did not fulfill the requirements of his TDP. Accordingly, Respondent terminated Petitioner’s employment. Petitioner could have been terminated earlier than he was. In consideration of the fact that Petitioner had been a long-time employee of the company, he was given more time to improve his performance than company policy required. Petitioner presented no persuasive evidence that age played any role in Petitioner's termination. Petitioner did not prove that after he was terminated, a younger worker replaced him. Similarly, Petitioner presented no persuasive evidence that he is disabled within the meaning of the Florida Civil Rights Act, or that any disability played any role in his termination. Petitioner alleged his disabilities as “war wounds, tinnitus and hearing loss.” Petitioner never informed Respondent that he suffered from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Furthermore, Petitioner never informed Respondent that the disabilities alleged would in any way prevent him from performing his job as a Service Technician, or from satisfying the TDP developed to assist in ameliorating his performance deficiencies. Petitioner never informed Respondent that the alleged disabilities substantially impacted any major life function, or affected Petitioner’s ability to perform the essential functions of his Service Technician job. Respondent was not, at relevant times, on notice that Petitioner might suffer from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Respondent never perceived Petitioner to be disabled at times relevant to this case. During his employment as a Service Technician, Petitioner did not indicate a need for or make any request to Respondent for accommodations for any physical condition. Finally, Petitioner alleged that his termination was in retaliation for complaints he had filed in another forum. This allegation was not proved; rather, the evidence established that Petitioner never opposed any practice which is an unlawful employment practice under the Florida Civil Rights Act. In sum, the evidence established that Respondent discharged Petitioner solely on account of inadequate job performance as a Service Technician, and not on account of his age, disability, or in retaliation for complaints filed in another forum.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of October, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2005.
Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 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 Whether Petitioner, Norma J. Nolan, was discriminated against by Respondent, K.D.P., Inc. d/b/a Western Sizzlin Steak House, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice. Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: K. D. P., Inc., operated a restaurant known as Western Sizzlin Steak House in Bradenton, Florida, which business was established prior to the alleged incident of July 1990. This business has continued in operation to the current time under the same management and with many of the same employees, although the restaurant has subsequently become known as Cattle Company Cafe. The Respondent, K. D. P., Inc., d/b/a Western Sizzlin Steak House, now known as Cattle Company Cafe (KDP), owned by Jack Parrish, has been managed by Kevin Wreford for approximately twelve years. Parrish relies on Wreford for the day-to-day operation of the business, hiring and firing decisions, and supervisory responsibility. The Petitioner was employed from December 1989 through February 1990 by Upjohn Health Care on a part-time basis as a respite worker. While she was physically able to do that job, Petitioner chose to leave that employment as it had little work available for her with that agency and Petitioner wished to work at a location closer to her home. Petitioner applied for employment with KDP by way of written application on August 2, 1990. Petitioner's employment application did not indicate any physical handicap, disability or limitation. Wreford interviewed Petitioner for the position of part-time cashier in early 1991. During the interview, Wreford discussed with the Petitioner the duties of the position for which she had applied. Those duties included taking payment from customers at the cashier's stand, overseeing the salad and sundae bar, checking the women's restroom, cleaning glass in the area of cashier's stand and watching for walkouts (walkouts being customers who walk out without paying for their meals). Petitioner advised Wreford that she was capable of performing these duties but was concerned about her lack of experience in working with cash and making change. Wreford hired Petitioner as a temporary, part-time cashier, and Petitioner began work in that capacity for Respondent on February 3, 1991. Petitioner continued in the employment of the Respondent in the capacity of part-time cashier through July 17, 1991. At the time Petitioner was hired by Respondent on February 3, 1991 there was a large wooden bar stool located behind the counter where the cashier took payments for meals. All cashiers working for the Respondent, including Petitioner, were allowed to sit on this stool at times when they were not waiting on customers (cashiers were required to stand while waiting on customers) or performing other assigned duties as set out in Finding of Fact 6. Sometime around July 1, 1991, Wreford discussed with the cashiers, including Petitioner, his concerns about the cashiers not performing their other assigned duties when they were not waiting on customers. Performing other assigned duties required the cashiers to be away from the cashier's area. At this time, Petitioner made Wreford aware of her knee problem and advised him that she may have difficulty standing for long periods of time. There had been no mention of this problem previously nor had Petitioner experienced any problem with her knee previously. Likewise, Petitioner did not experience any problems with her knee in carrying out her assigned duties during the next two weeks. In fact, both Wreford and Parrish were pleased with Petitioner's performance during this period. On or about July 12, 1991, Parrish's wife who had become involved in the management of the restaurant advised Parrish that the stool needed to be removed from the cashier area because: (a) the stool was showing its wear and tear and was aesthetically unpleasing; (b) the stool was taking up too much room resulting in the cashiers not being able to perform their duties properly, particularly looking for walkouts and; (c) to prevent a certain cashier (not Petitioner) from abusing the privilege of the stool by sitting on the stool for extended periods of time and not performing her other assigned duties. On or about July 12, 1991, Parrish removed the stool from the caahier's area and placed it in his office where it remains today because the stool has a sentimental value in that Parrish used the stool in his first restaurant. On or about July 13, 1991, when Petitioner arrived for work and noticed the stool had been removed she met with Parrish and Wreford and advised them that she could not work without the stool because of her knee. Parrish and Wreford offered to accommodate her problem by allowing Petitioner to sit at a table adjacent to the cashier area when she was not waiting on customers or performing her other assigned duties. Petitioner advised Parrish and Wreford that she could not work under those conditions but that she would stay on until a replacement was found. Parrish and Wreford accepted Petitioner's resignation but encouraged Petitioner to continue her employment until she could determine if the accommodation would be satisfactory. Petitioner continued to work for Respondent until July 17, 1991, and was able to function without any problems with her knee under the accommodations provided by Respondent. However, after Petitioner resigned she never asked to be reinstated even though she was able to function under the accommodations provided by Respondent. Although Petitioner alleged that she had a physical disability/handicap because of problems she had related to an alleged right knee replacement done some years earlier, there was no medical evidence or other documentation establishing any physical handicap or restrictions/limitations in her ability to work. There were other cashiers employed by Respondent who had conditions similar to Petitioner's conditions who were able to function with the same accommodation offered Petitioner. One of those was the person hired by Respondent to take Petitioner's position. Petitioner collected unemployment compensation after leaving Respondent's employment, as well as other forms of assistance, such as food stamps and housing assistance. Additionally, after leaving Respondent's employment Petitioner developed "female problems" and is not seeking employment even though she attended computer school. There was no evidence as to the amount of damages suffered by Petitioner. There is insufficient evidence to establish facts to show that Petitioner was discriminated against on the basis of a handicap by Respondent or that any unlawful employment practice occurred. There is competent substantial evidence in the record to establish facts to show that there were legitimate, nondiscriminatory business reasons for the action taken by Respondent in removing the stool and providing other accommodations for the cashiers, including Petitioner. There was insufficient evidence to establish facts to show that the Respondent's articulated reasons for its action were pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Norma J. Nolan, was not discharged due to her handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 8th day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 8th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3903 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 13 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. Respondent's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 32 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. COPIES FURNISHED: Norma J. Nolan, Pro Se 1109 Harvard Avenue Bradenton, Florida 34207 Donna L. Derfoot, Esquire Post Office Box 3979 Sarasota, Florida 34230 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
