Findings Of Fact Petitioner was a lead operator on the first shift of the data entry section of Respondent company. Mr. John Goolsby was also a lead operator but on the second shift in the data entry section. Petitioner was discharged due to elimination of the position of lead operator and Mr. Goolsby was not. During the period encompassing the elimination of Petitioner's job, Respondent reduced its staff from 73 to 57 people and the data entry staff was reduced from 12 to less than 8 people. The decision as to which lead operator in the data entry section would be released from employment was based upon a decision to keep the most productive employee on the basis of quality and quantity of work. Although both the Petitioner and Mr. Goolsby were satisfactory employees, the most productive individual was identified through a series of evaluations by interviewing management personnel to Mr. Christman, Respondent's Executive Vice-President. Probably the most significant- input in the decision-making process was from Sandra Howell, immediate supervisor of both Petitioner and Goolsby, and the tabulations and comparisons of data were done by Walter E. Wilfong, Operations Manager. They all identified John Goolsby as the most productive individual and the decision to release Petitioner was made by Mr. Christman. At the time she was released, the company had no alternative position to offer Petitioner. She has since been offered reemployment in a different position. Petitioner was unable to establish that in making their recommendations to Mr. Christman either of the middle managers gave special or undue consideration to Mr. Goolsby's school schedule. Petitioner never received any written complaints or warnings or reprimands about her work performance and it was unrebutted that her job performance was satisfactory. Petitioner testified that the comparison of production between herself and Mr. Goolsby was invalid because Mr. Goolsby worked the night shift and Petitioner worked the day shift. Witnesses for the Respondent conceded that the night shift was generally not as productive as the day shift. However, the immediate supervisor of both the Petitioner and Mr. Goolsby both before and Mr. Goolsby after Petitioner's termination testified that Mr. Goolsby's work quality and quantity was superior to that of the Petitioner. This testimony was unrebutted. In addition, it was unrebutted that Mr. Goolsby had been nominated for company-wide awards for his quality as an employee on several occasions both before and after the Petitioner's termination and the Petitioner had never been nominated. Although there is some indication in Mr. Wilfong's testimony that Mr. Goolsby had the "edge" with him because Wilfong wanted someone who could communicate with Wilfong for liaison between various shifts, the evidence falls short of establishing this consideration was a deciding factor or that any edge was given Goolsby in the evaluation reports. Further, Wilfong attempted to compensate for Goolsby's showing greater productivity due to the "less people- more work" element of the night shift by reviewing Petitioner's productivity records from then she had previously been on the night shift, which did not compare favorably with Goolsby's for quantity. There is no competent evidence that Respondent terminated Petitioner on the basis of her gender, female, by the ruse of eliminating her position. Further, at the date of formal hearing, Mr. Goolsby's supervisor remained female (Sandra Howell) and there are 6 female/6 male supervisors and a higher female to male ratio of the total 57 retained employees.
Recommendation It is recommended that the Human Relations Commission enter a final order dismissing the Petition/Complaint herein. DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2866 All of the Respondent's Proposed Findings of Fact are accepted. All are adopted, as modified to conform more closely to the record in this cause. COPIES FURNISHED: Ms. Terri Tibble 3040 Aloma Avenue, Apt. J-9 Winter Park, Florida 32791 Thomas R. Pepplar, Esquire Graham, Clark, Pohl & Jones 369 New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32299-1570
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination due to Petitioner’s national origin.
Findings Of Fact Respondent Employer is a paper packaging plant located in Cantonment, Florida. It fills orders from retailers as specified on purchase order forms (POFs). Respondent manufactures a variety of bags for containing retail goods. Petitioner worked for Respondent for more than eight years. During part of this time, he was a member of a union which had a collective bargaining contract with Respondent. At all times material, he did shift work involving heavy machinery "on the floor." Petitioner was terminated on June 13, 2003, after a series of disciplinary actions, the last of which arose out of events occurring on June 9, 2003. Petitioner contends in his Proposed Recommended Order that Respondent did not follow the guarantees of his union’s collective bargaining contract, the established grievance procedures, and/or Respondent’s policy and procedure manual for tier-disciplining or for counseling him. However, Respondent’s failure to comply with these artificial standards, or Respondent's failure to only partially comply with them, is not determinative of any issue under Chapter 760, Florida Statutes, unless Petitioner also can show that other employees, who were not of Petitioner’s protected class, were treated differently or more favorably than Petitioner in a similar situation. It appears, however, that each time Petitioner requested union representation, he was provided with union representation. When he did not request union representation, he was not provided with union representation. On his Charge of Discrimination, Petitioner checked only the box for “national origin.” He did not check the box for “race.” However, under the portion of the form reserved for “The Particulars Are:”, Petitioner filled in: During my employment, I was constantly harassed by being called racially derogatory names. On June 13, 2003, I was terminated because of national origin (Native American). I was told that I was terminated for negligence. On his Petition for Relief, Petitioner complained, among other things, of “ethnic slurs” such as: Hay [sic.] Indian called Derogatory – names such as two Dog about my color and race. About a year before his termination, Petitioner had a feud with a white male co-employee, Clifford Stuckey. This feud is described below more fully and in sequence with other events. Generally, however, Petitioner was a non-confrontational employee with a good work ethic. With regard to his job performance, Petitioner was a model employee until he was promoted to machine operator more than two years before his termination. Petitioner had done well as an assistant machine operator, but after promotion, Petitioner was disciplined for a rash of quality control errors. The nature of his quality control errors was the same as that of many other similarly-situated employees, but his errors differed from other employees' errors in that he accumulated more quality control errors in a shorter period of time than any of his co- workers; he demonstrated too many such flaws within a single twelve-month period; and he cost the employer a considerable amount of money in wasted goods. For the eight-plus years of his employment, nicknames were the common way Petitioner and his co-employees addressed one another, day-in and day-out on the floor of the plant. Some supervisors picked up these nicknames due to their regular and pervasive use among subordinates. Many employees had nicknames that they did not object- to. One Black male employee purchased a vanity license plate which read "African," so co-employees called him "African," without anyone considering the nickname to be a racial slur or otherwise derogatory. Carl Broadnax (Black male) was proud to be called "Black Stud." Ronald Moran (white male) was known as "Big Ron." A Puerto Rican employee named Tony Crevice (phonetic spelling) was called "Julio." Eric Adkins (Black male) called another employee (race and gender unspecified) "Pooh Bear." Wesley N. Houston (white male) was called "Cowboy." In the course of disciplinary actions against him during the last fifteen months of his employment, (see Findings of Fact 52-53, 65-70, 80 and 81), Petitioner told Nancy Glass, Respondent's white female Human Resources Director, that he was an "Indian." She understood that he perceived himself to be an "Indian." During his eight-plus years in Respondent's employ, Petitioner was perceived by many of his co-employees as an “Indian” or “Native American.” Some of them called him by his first name, "James," but most of them also called him by the nicknames, “Indian,” “Two Dog,” “Two Dogs,” and/or “Two Dogs Fucking.” No clear evidence was presented as to how often any or all of these nicknames were used to address, or in reference to, Petitioner, but their usage must have been as common, continual, and pervasive as any of the other nicknames used day- in and day-out on the floor. The foregoing nicknames for Petitioner were used by co- employees and accepted by Petitioner for more than eight years without rancor or dismay on either side. For more than eight years, the users did not perceive that the nicknames might be racially provocative or demeaning of Petitioner's race or national origin, and they did not sense that he might be hurt by the nicknames, because he did not express hurt feelings or offense to anyone. Only one witness thought Petitioner's nicknames were a bad thing. Ronald Williams (Black male and current union president) knew that "Two Dogs" was a common name given to Petitioner and that it was an abbreviation for "Two Dogs Fucking." He heard the abbreviation "Two Dogs" directed to Petitioner, but he never heard the full phrase even used around Petitioner. He considered both phrases to be racial in origin and racial in context, but even Williams could not say that Petitioner ever reacted oppositionally to any of the nicknames. No other witness acknowledged hearing the nickname "Two Dogs Fucking." All of them thought the other nicknames which were applied to Petitioner were neither racial nor offensive. For instance, on a regular basis, Ricky Mitchell (white male) called Petitioner "Indian," without considering it a racial slur. Petitioner addressed Mitchell as "Paw Paw." Ronald Moran (white male) called Petitioner "Two Dogs," as a nickname, without assuming any racial connotation. Frank Talamo (white male, and sometimes-union shop steward) has used the term "Nigger" in his private life, but stated that he would not use it on the job, because it is, in his opinion, a racial slur. Mr. Talamo heard Petitioner referred-to as "Indian" and "Two Dogs" on a regular basis. Mr. Talamo testified that although he did not, himself, use the nicknames "Indian" and "Two Dogs" with Petitioner, he also did not consider them to be racial slurs, as he would have considered the word "Nigger." Eric Adkins (Black male) heard Petitioner called some "bad" or "harsh" names, but he did not specify what the names were; he also did not characterize the bad or harsh names as "racial." Carl Broadnax (Black male) testified that he called Petitioner "Two Dogs" because Petitioner's Cousin Joey, another Indian who worked in the plant, told Broadnax to call Petitioner by his Indian name, "Two Dogs" or to call Petitioner "James," Petitioner's given name. Because of Joey's instruction, Mr. Broadnax thought everybody called Petitioner "Two Dogs." Mr. Broadnax heard Petitioner called "Indian" by others. Ivory Stallworth (white female) heard Petitioner called "Two Dog." Aaron Hodges' paternal grandmother is "Indian" or "Native American." Mr. Hodges does not make a distinction between the two designations, "Indian" and "Native American," and does not consider either designation to be derogatory language toward his grandmother or toward anyone else. He picked up the nickname, "Two Dogs" from its general usage on the plant floor to, and about, Petitioner. Cynthia Perkins (white female) stated that Petitioner was called "Two Dogs" in "general talking." Wesley N. Houston heard Petitioner called "Indian" and "Two Dogs," but did not consider these nicknames to be racist remarks or derogatory language. Clifford Stuckey (white male), with whom Petitioner feuded for a time, regularly called Petitioner "James" and "Two Dogs," because those names were what Petitioner was being generally called when Mr. Stuckey came to work for Respondent. He only knew Petitioner by his nicknames for two years, while they were "on the job friends" and "house visiting friends." Stuckey never heard anything else added to "Two Dogs." Apparently, Stuckey called Petitioner both "James" and "Two Dogs" before, during, and after the height of their feud, described more fully below. Also, at least two supervisors (Allen Givens and Eddie Jeffres) used some of these nicknames in addressing Petitioner. Jeffres participated in an early disciplinary action against Petitioner, but neither Jeffres or Grimes participated in Petitioner's eventual termination. Allen Givens was a machine operator, and thus a co- employee of Petitioner. Sometimes, he was also an "acting supervisor" over Petitioner. He heard others on the floor call Petitioner "Indian" and "Two Dogs." He personally called Petitioner "Indian" or "James." Givens testified that if Petitioner had ever intimated, while Givens was "acting supervisor," that Petitioner had a problem with any nickname, he, Givens, would have put a stop to it. At some point, Givens, while he was "acting supervisor" over Petitioner's shift, took Petitioner into the office and explained that Petitioner needed to do something about his body odor. The meeting between Givens and Petitioner was one-on-one, with no union representative or other employees present, and it was not written-up. Petitioner did not testify concerning this meeting. Givens was the only other person in the meeting, and he testified that he had initiated the conversation informally when he did, because he personally had noticed Petitioner's unpleasant body odor that day and because other employees had complained to him that day about Petitioner's body odor. Givens, whose grandmother is an American Indian or Native American, did not consider his comments to Petitioner about body odor to be racial in nature, and race or national origin was never mentioned by either himself or Petitioner during their meeting. Givens further testified, without refutation, that such a meeting happened only the one time; that the conversation was in the nature of "counseling," as opposed to the formal disciplinary step of "coaching" Petitioner; that he had felt he was protecting Petitioner's feelings and privacy by not making a record of this counseling session; and that no record was made because it was not part of the employer's three- tiered disciplinary formula. Other witnesses confirmed that general day-to-day supervision, which did not lead to some form of oral or written warning or other standardized disciplinary action against an employee, was not normally written-up for the employee's personnel file. Not making a record of a minor counseling session was to the employee's advantage, because once something was recorded, it could be used against the employee as part of the employer's three-tier progressive discipline formula. Although all witnesses concurred that working in the employer's un-air-conditioned plant, around heavy machinery, was sweaty work and that everyone smelled bad at some time or other, Frank Talamo, Eric Adkins, and Aaron Hodges also testified that at some point, Petitioner had a particularly offensive body odor. On one occasion, Talamo had asked a foreman to speak to Petitioner about it. No witness attributed Petitioner's body odor problem to his national origin or his race. Although Petitioner may have been the only employee counseled about body odor by Givens, other supervisors had counseled other employees. After being told about his body odor problem, Petitioner kept deodorant in his tool box and used it. Respondent never disciplined Petitioner for body odor. Eddie Jeffres, (white male) was Petitioner's team manager/supervisor. Many witnesses heard Jeffres address Petitioner as "Two Dogs." Mr. Jeffres addressed Petitioner as "Two Dogs," without any add-on, because that was the nickname Petitioner's co-workers used. He testified that he did not consider the nickname "professional," but he used it in a spirit of levity and camaraderie. He further testified that he would not have used it if, at any time, Petitioner had objected to it or had acted embarrassed by it. Because Petitioner always replied professionally and without rancor when the nickname was used, Mr. Jeffres did not equate its use with giving offense or hurting feelings. Jackie Hodge was department manager. He considers himself to be "Cherokee-Irish." He never heard "Two Dogs" used with an add-on. He did not hear the abbreviated form used in Petitioner's presence, either, but he heard Petitioner referred- to as "Two Dogs." He, personally, did not refer to Petitioner as "Two Dogs," but he also did not think the term was racially demeaning. If he had thought that the term were racially demeaning, he would have sought out Petitioner's opinion on the matter. If Petitioner had complained to him, he would have prevented use of the nickname by other employees. However, it is his managerial style not to start an inquiry unless an employee complains, and Petitioner never came to him directly. Indeed, none of Respondent's co-employees or supervisors thought Petitioner objected to any of the nicknames used to his face or used about him in general conversation, because Petitioner answered to the nicknames and did not complain or answer back with rancor when the nicknames were used. Additionally, Ms. Stallworth thought "everyone was okay with what was going on," because Petitioner answered to "Two Dog." Robert McCollough was production manager. He considers himself to be "an American with an Indian great-grandmother who was full-blooded Cherokee." McCollough's wife of over 30 years is a Creek Indian, and his children went to college on an Indian grant. He never heard of "Two Dogs" and was not aware it was being used to refer to Petitioner, but he testified that unless Petitioner complained about the nicknames, the employer's management would not root out a problem where none was perceived. Respondent Employer's predecessor in interest had an Anti-Sexual Harassment Policy in its employee's manual as of 1988. This policy was carried over by Respondent Employer. Petitioner received, and signed for, the Anti-Sexual Harassment Policy when he was first employed by Respondent Employer in approximately 1995. In 1999, when Respondent promulgated a similar Anti-Workplace Harassment Policy that specifically prohibited discrimination on the basis of race or national origin, Petitioner received a copy of it.6/ The employer's Anti-Workplace Harassment Policy incorporates a procedure for confidentially addressing employee discrimination complaints, including harassment complaints. Briefly, that policy provides that an employee who feels harassed should directly tell his or her harasser what act or speech is offensive. If that confrontation does not end the problem, the offended employee is encouraged to go to the Human Resources Office, or to any supervisor on the chain of command, to lodge a confidential complaint. Even an "800" telephone number is provided so that a harassed employee may report the problem in complete confidentiality to the employer's legal office. Since 1999, Petitioner has attended annual meetings discussing the Anti-Workplace Harassment Policy.7/ The Anti-Workplace Harassment Policy is posted in the plant where any employee can refer to it, and it is sent out to employees' homes in newsletters. Respondent Employer also has in place, and has posted, an Equal Employment Opportunity Policy. All witnesses agreed that while employed, Petitioner never raised his nicknames as a harassment or racial issue or as an issue of national origin to anybody.8/ Nancy Glass confirmed that, despite her "open door policy," Petitioner never filed a formal written protest with the employer's Human Resources Office because of any nickname. Petitioner took the machine operator certification course, but he did not pass it the first time. The second time he took the course, he passed. He became an operator about 1999. Prior to that time, he was an assistant operator a/k/a "a feeder" or "a helper." Machine operators receive an Operator Skills Training Handbook during their initial 40-hour machine operator certification course. The handbook describes the functions of the machines on which the operators work and the policies and procedures that operators and their assistants are required to follow, including proper preset procedures, proper set-up procedures, proper sleeve types, and how often quality checks should be done by both operators and assistant operators. As an operator, Petitioner received quality assurance training twice-a-year. If an employee's job performance requires correction, he first would be provided additional training. This training would be documented as a coaching session, rather than as discipline. Other than that, the employer has a three-tiered corrective action (discipline) program in place, as set out in the employees' handbook. All levels of discipline are documented in writing, even oral warnings. If supervisors do not perceive an error as correctable by retraining an employee, an "oral warning" is issued "in writing" for the employee's first error. The employee's next substandard performance results in a "written warning." The third step is to put the employee on paid Decision Making Leave (DML) for one day, to go home and think about how to correct his flaws and to write out a letter saying how he is going to accomplish that correction. If all three steps occur in a 12 month-period, a fourth error is supposed to result in termination. If the employee passes the 12 months' mark without a third error, the tiers recycle. On average, the employer expects its operators and assistant operators to check their machines for accuracy every half hour. Usually, the operator and assistant operator stagger their respective checks in hourly sequences, so one man checks on the hour and one man checks on the half-hour. This means that the machine/product is checked every half hour by one or the other of them. Some POFs require more frequent quality control checks. At the beginning of each shift, each new operator coming on duty is responsible for comparing the POF to be run, or still running from the last shift, with the product currently coming off the end of his machine. If that operator does a quality check at the very beginning of his shift, and then checks repeatedly at the required intervals throughout his shift, no more than thirty minutes (and thirty minutes' equivalent of non-conforming bags) can go by before an error is noticed. The point of quality control checks is to ensure that the employer avoids running non-conforming bags. Sometimes, non-conforming bags can be sold to a different buyer, often at a lesser profit. More often, they cannot be sold, cannot be recycled, and must be trashed. There was no substantial difference in the discipline the employer applied to employees producing non-conforming bags which could be sold to a different buyer and the discipline it applied to employees who produced non-conforming bags, all of which had to be destroyed for a total loss. The employer has been reasonably consistent in holding responsible everybody associated with a machine's quality control error who was on the shift when the quality control error was discovered, such as that shift's assistant operator, operator, and ending supervisor, for the same machine. Depending upon when respective POFs were started and finished, the employer has also held responsible whichever operator preset the machine on the previous shift and that operator's assistant operator, both of whom should have performed the quality control checks on the previous shift. Sometimes that shift's ending manager was disciplined, too. Usually, the operator coming on shift and his assistant operator also have both been disciplined if non-conforming bags are run. Sometimes that shift ending manager was also disciplined. Basically, if the prior operator and his assistant run bad bags, they are disciplined for their own error, and if the next shift operator comes on shift and does not immediately check to prevent further errors, both operators and their assistants are written-up. Put another way, if there was a bad pre-set by an earlier shift, the operator, assistant, and manager on that shift are disciplined for the bad bags they have actually run, and the next shift operator, his assistant, and his manager are disciplined if bad bags result from the new operator's failure to check the pre-set as soon as the new operator comes on duty. If it is a totally new set-up by the new shift operator, then only that operator, his assistant, and his ending manager, are disciplined. The degree of discipline for quality control flaws imposed upon any of the respective employees from either shift depended upon whether they already had gone through any of the three tiers of progressive discipline within the preceding 12 months. Neither race, national origin, nor union membership affected who was disciplined or the degree of discipline any employee, including Petitioner, received for producing non- conforming bags. On March 19, 2002, a random quality audit was performed by a manager. Petitioner received an oral warning which was written-up, because he had personal items (two packs of cigarettes) on his work bench/machine, and for failing to make on-going quality control checks of the weight of the bags his machine was running. No evidence of other employees also being written up for the offense of personal items in view was offered, but there also was no evidence others had personal items on their work benches in the same time frame without being written-up. Several witnesses testified that at one time having personal possessions in view had been permissible, but then a rule or instruction by the employer had prohibited this "in view" practice. Petitioner did not contest this discipline at the time. On April 3, 2002, Petitioner set the product up to run with the wrong sleeve paper and then went off shift. His feeder had brought him the wrong sleeve paper. The feeder had not been disciplined previously, so she received a write-up of oral coaching. Petitioner did not run non-conforming bags himself, but he failed to follow the preset procedure, so he did not catch the feeder's error. The wrong sleeve paper resulted in 12,500 defective bags being run on the following shift. These bags could not be used and had to be thrown away. Petitioner was orally counseled, by two supervisors, regarding his quality control flaw, and received a written warning for his failure to follow proper preset procedures. Eric Adkins, the operator on the next shift, and Adkins' helper, Larry Calhoun, both of whom actually ran the non-conforming bags using Petitioner's improper preset, and supervisor Eddie Jeffres, also were written-up for this error. The type of write-up each person got depended upon where his particular error ranked in the sequence of his respective number of prior errors, if any. Petitioner did not dispute this discipline at the time. Clifford Stuckey had come to work for Respondent about three years after Petitioner. This was perhaps early 1998. Petitioner and Stuckey were "on-the-job friends" and "house- visiting friends" in their private lives for awhile. Unfortunately, about a year before Petitioner was terminated, perhaps June 2002, they had a falling-out. Because Petitioner did not testify, the only first- hand explanation of what started their feud came from Stuckey. Apparently, Petitioner left his wife's car at Stuckey's home, with the intent of buying a second car for use as parts. The two men had an expectation that Mr. Stuckey, who was a good shade tree mechanic, would use the parts of the second car to fix Petitioner's wife's car. However, Petitioner's wife's car was left at Stuckey's home, without the "parts" car being supplied by Petitioner, for seven months, a period of time that was longer than Stuckey thought appropriate. Stuckey gave Petitioner an ultimatum that if Petitioner's wife's car were not removed, Stuckey would leave it on the road. When Petitioner and his wife arrived at Stuckey's home to get the car, Stuckey was still on the job at the plant. Petitioner and his wife phoned Stuckey from a neighbor's home, but Stuckey refused to leave work and come home with the key to his house so that Petitioner and his wife could get their car key. Harsh words were exchanged over the telephone, and Stuckey addressed Petitioner's wife disrespectfully. It is unclear whether Stuckey also made an oral threat of unexplained consequences against Petitioner over the phone, but it is clear that Stuckey was in no position to physically assault Petitioner or his wife over the telephone line. Later, Petitioner and his wife found their car in a ditch by the side of the road leading to Stuckey's home. Stuckey testified that for awhile after the car incident, Petitioner, while passing Stuckey's work station in Respondent's plant on his way to the restroom, would grab his own crotch or "flip me the finger." These are universal signs of contempt, designed to provoke another into striking the first blow. After one such crude challenge by Petitioner, Stuckey told Petitioner "if he did it again, I would whip his tail." It is presumed that Stuckey's foregoing on-premises oral threat was actually delivered in somewhat cruder and more urgent language than he admitted-to on the witness stand. Nancy Glass testified that shortly after the car incident, and still about a year before Petitioner's termination, Petitioner approached her and Robert McCullough in her office, and told them that he was "not saying he wouldn't or couldn't work with Stuckey," but that there had been an off- premises incident involving Petitioner's car being found on the road; that the dispute between himself and Stuckey had gotten "pretty nasty"; and that Stuckey had "smart-mouthed" him in the plant, as they had passed each other when Stuckey was going off shift and Petitioner was coming on shift. Petitioner acknowledged to them that no one had witnessed the "smart-mouth" incident. Petitioner did not tell Glass or McCullough that he had been threatened by Stuckey or that his feud with Stuckey involved any discrimination against him. He told them he did not want to have a sit-down discussion with Stuckey and that he did not want to make a big deal out of the incident, but he thought they should know about it. Petitioner said nothing about discrimination on the basis of his being Indian or Native American. He said nothing about any nicknames applied to himself. Since Petitioner did not wish to pursue the matter, Glass just told him to let them know if there were any further trouble between himself and Stuckey. Robert McCullough recollected, not that Petitioner had mentioned Stuckey in a meeting in Glass's office, but that Petitioner told McCullough while they were both on the plant's floor, that he and Stuckey had "a cussing" at one another off the plant premises. McCullough also did not recall Petitioner ever saying any incident had occurred on the plant premises or that Petitioner wanted to stay away from Stuckey. Petitioner said nothing to McCullough about discrimination, race, or national origin before his termination a year later. (See Finding of Fact 81.) For an indeterminate period of time, Petitioner and Stuckey avoided each other at the plant, and it was clear to some co-workers that there was "bad blood" between them. During this time, never proven rumors circulated on the floor that Petitioner and/or his wife had been threatened by Stuckey. A never proven rumor reached Stuckey that Petitioner and his wife had "telephoned" Robert McCullough about the car problem. However, Nancy Glass confirmed that Petitioner never filed a formal protest concerning his problems, whatever they might have been, with Stuckey, and he never said anything more about their feud to her for the year leading up to his June 2003 termination. Some co-employees never heard about the feud until after Petitioner's termination, when a never proven rumor started that Stuckey had sabotaged Petitioner's machine after Petitioner went off shift, thereby subjecting Petitioner to the final discipline of termination (see Findings of Fact 83-84) There was another never-proven rumor that Stuckey had rifled Petitioner's tool box while Petitioner was on suspension. Still other co-employees did not hear about the feud between Petitioner and Stuckey until a few days before the merits hearing on this case, when one party or the other contacted them about subpoenas. Most of the co-employees who had heard of Petitioner's and Stuckey's feud before Petitioner's termination thought the feud had blown over by the time Petitioner was terminated in June 2003. On December 3, 2002, Petitioner was given a "written warning" for failing to follow an order approval on a quality checklist which resulted in 1,500 defective bags being run. These bags had to be thrown away because they were created with a crease cut so that they could not be filled with the customer's product. The error should have been detected on the set up or on a later quality check. Petitioner was counseled regarding this error, as was the manager who approved the bag. Because Petitioner already had received an "oral warning" and a "written warning," his December 3, 2002, error should have resulted in Petitioner being placed on DML. However, Jackie Hodge wanted to work with Petitioner, rather than to have to retrain someone new. Hodge also felt that steps in the disciplinary tier system should not be duplicated. Therefore, he reduced Petitioner's December 3, 2002, write-up to a "coaching session" and required Petitioner to retrain on the order approval procedure for the type of bag he created and on its quality checklist procedures. Petitioner's manager was also counseled. On January 13, 2003, Petitioner was placed on DML, with one day's pay, for failing to perform quality check procedures which resulted in approximately 6,000 bags, with cuts on the main score, which had to be scrapped. If Petitioner had made the required quality checks, the error would not have occurred. Petitioner's union representative attended the meeting in which Petitioner was placed on DML. Jackie Hodge also gave Petitioner a card for confidential Employee Assistance counseling, which is an employee benefit. Petitioner's manager was also counseled and written-up, consistent with his own respective number of substandard performances. Petitioner returned to work with his DML letter dated January 24, 2003. The DML letter Petitioner composed and turned in did not set a specific date for formal review of his performance and improvement progress.9/ However, in the letter, Petitioner pledged to follow quality control procedures in the future. The letter was accepted by management, and Petitioner was put back to work. Because the management team had not been physically able to meet with Petitioner within one day to review his DML letter, and because DML is technically a suspension, Jackie Hodge arranged for Petitioner to be paid for a second day without his actually working. This was a deviation from the standard disciplinary policy, but it was a deviation to Petitioner's advantage. On May 16, 2003, although Petitioner's quality checklist accompanying an order indicated that quality checks had been performed every half hour, the sleeve construction and placement on the bags produced were not correct. As a result, nearly 7,000 defective tubes had to be thrown away. Petitioner, his manager, and his helper were all disciplined for this quality control error. One of the concerns of management at this stage was that Petitioner and his helper may have falsified their checklists showing that the quality control checks had been made when the checks were not, in fact, made. If the checks had been made, in reality, and not just the paper work filled-out, the error would have to have been "caught" in less than an hour, and far fewer non-conforming bags would have been created. If the checks had been made and apparent errors corrected at any stage, 7,000 non-conforming bags could not possibly have been created. Petitioner's union representative signed-off on his suspension. Petitioner met with Jackie Hodge, Ron Williams, Nancy Glass, Robert McCullough, and Leo Willoughby on May 22, 2003, while he was on suspension, pending probable termination for too many progressive disciplines within a 12-month period. Petitioner agreed that if they brought him back to work, he would follow all plant procedures, including quality control checks. Management side-stepped a union grievance and brought him back to work, with the understanding that if he again failed to follow instructions, he would be terminated. It was Jackie Hodge's job to schedule available workers' hours and shifts in order to keep Respondent's plant fully operational at all times. On June 9, 2003, he assigned Petitioner, as operator, and Stuckey, as assistant operator, to the same machine on the same shift. Stuckey testified, without refutation, that it was "just luck" he and Petitioner were not scheduled to work together on the same shift or same machine while their feud had been in progress. It was management's mind-set that in the absence of discrimination, "problems were not moved, but solved," and that any disputes arising off-premises were up to employees to work out on their own. The same was essentially true for personal, non-discrimination problems arising within the plant. There is a discrepancy in the testimony as to when, precisely, Jackie Hodge found out that Petitioner and Stuckey had their feud. Nancy Glass testified that she "thought" she told Hodge about the off-premises car incident and on-premises "smart mouth" incidents a year before June 9, 2003. (See Findings of Fact 57-58). Hodge, himself, testified that he knew nothing about the off-premises car incident and on-premises "smart mouth" remark until Petitioner was "on suspension." Because Petitioner was on suspension of some kind on January 13, 2003, May 16, 2003, and after June 9, 2003 (See Findings of Facts 67-70 and 79-81) it is hard to say with any assurance whether or not Hodge knew, when he assigned them to the same machine for June 9, 2003, that Petitioner and Stuckey had feuded a year before. Yet, regardless of when Jackie Hodge knew Petitioner and Stuckey did not get along, there is absolutely no evidence that Petitioner's and Stuckey's personal problems, on or off the employer's premises, were motivated, affected, or prolonged because of discrimination against Petitioner as an Indian or Native American. Moreover, Stuckey testified that although he and Petitioner never sat down and formally discussed their problems or agreed to be friends again, he also testified, without refutation, that he thought that he and Petitioner had resumed their friendship by the time they were scheduled to work together on Petitioner's last night of employment, June 9, 2003. Finally, after Jackie Hodge posted the machine and shift assignments for June 9, 2003, neither Stuckey nor Petitioner approached him to request that he reassign one or the other of them to a different shift or machine. Petitioner and Stuckey worked the same machine on the same shift on June 9, 2003. When Petitioner and Stuckey went off shift on June 9, 2003, their machine was producing bags without a tuck-in sleeve, contrary to the POF. Defective bags were created with the glue under the valve, in the wrong position on the bag. If Petitioner and Stuckey had performed the required quality control checks, the machine should have been producing the correct type of bag when they turned it over to the next shift. Because they had left the incorrect set up, and because the operator coming on shift after them did not immediately catch their error, the machine continued to create unusable, non- conforming bags well into the following shift. Petitioner's June 9, 2003, quality checklist indicated that he had performed all the quality checks. However, the order ran at the rate of 2,000 bags per hour and the order called for quality checks to be performed every 15 minutes. Thus, during the six hours it took to run close to 12,000 bags, a total of 24 quality checks should have been performed by Petitioner, Stuckey, and the next operator and his assistant, each of which checks could have caught the error. Because the error was not caught during the quality check procedure, all 10,850 bags actually produced had to be scrapped. Petitioner and Stuckey were both disciplined for the June 9, 2003, problem. At this point, Petitioner's accumulated disciplinary record clearly required that he be terminated. As before, he was suspended, pending a decision on termination. Stuckey's situation had not reached that stage, and he received a written warning. After a review by McCullough and McCullough's superior, the decision was made to terminate Petitioner and he was notified by telephone. Petitioner filed a union grievance. During the review and grievance process, Petitioner admitted to McCullough that he and Stuckey had been signing off on the quality control checks for each other on June 9, 2003. Only after these reviews and grievance procedures were completed and the grievance was denied, did Respondent consider Petitioner "terminated," as opposed to "suspended." In all, the employer calculated that Petitioner was fully or partially responsible for 39,000 bad bags at approximately 33 cents per bag, or $12,870.00, worth of bad bags. Stuckey testified without refutation that he had not altered the machine in question. After some more operators (race and national origin unspecified) were disciplined for quality control errors on the same machine to which Petitioner and Stuckey had been assigned on June 9, 2003, it was discovered that a part on the machine was gradually slipping a little more each half hour so that the bags became increasingly non-conforming as time progressed. That discovery enabled Respondent to fix the machine, but the discovery did not alter anyone's prior discipline because timely quality control checks still would have prevented the production of so many non-conforming bags. There was no evidence that any of Petitioner's disciplinary problems was due to his race or national origin. There was no evidence that any of Petitioner's disciplinary problems or quality control issues arose from errors he made because of the nicknames he was called.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 17th day of September, 2004.
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for his filing of a national origin discrimination complaint with the Florida Commission on Human Relations on August 17, 1988.
Findings Of Fact The Southland Corporation, d/b/a Southland Distribution Center, is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Guillermo A. Barbosa was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately sixteen (16) years. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. The Petitioner, Guillermo A. Barbosa, is fully competent to represent himself on a pro se basis. He exhibited clear understanding of the procedural requirements at the formal hearing and the legal import of his burden of proof on his claim of an unlawful practice against the Respondent. Petitioner exhibited comprehension of the English language, both spoken and written, and exhibited fluency in the speaking of English in the interrogation of witnesses at the formal hearings. Respondent, The Southland Corporation, d/b/a Southland Distribution Center, functions as a warehousing and distribution complex for a number of commercial customers including 7-Eleven convenience stores and restaurant chains such as Steak & Ale, Bennigan's, TGI Friday's, Krystal and others. In order to service its regional territory of four states, it employs approximately 630 employees in a large 440,000 square foot warehousing facility located on Sand Lake Road in Orlando, Florida. Respondent's warehouse operates 24 hours a day five (5) days per week. Respondent's work force stores a variety of goods and products and, upon order or request from a given customer or account, selects the indicated goods, packs them in appropriate containers and loads the order on tractor trailer rigs for transport and delivery to the final destination point. The Respondent places great emphasis upon the importance of time and schedules. Timely reporting for work and attendance as scheduled is emphasized by the Company so that the closely integrated operation of the complex can be maintained with efficiencies of labor and close coordination of schedules between warehouse operation, the transportation link and the store hours of the customer. The policies, procedures and work rules of the Company provide incentive programs to reward employees who report to work as scheduled in a prompt and consistent manner. Conversely, through its work rules, the Company provides that employees who demonstrate a pattern of tardiness or absence may be disciplined or discharged. For these same reasons, the work rules published to the employees and acknowledged by each worker also stress that a failure to report to work when directed or as scheduled for a period of 48 hours (no show/no call) will result in automatic termination of employment. The Respondent views employee reliability for reporting to work as scheduled and on time as a fundamental condition of employment. On August 11, 1988, Petitioner reported an on-the-job injury and was relieved of duty and, under directions from the Respondent's occupational health nurse, treated by an outside physician. On August 17, 1988, while on the medical leave of absence due to the work-related injury, Petitioner filed a discrimination charge alleging denial of transfer or promotion due to his national origin. A notice of the charge of discrimination was directed to the attention of the Personnel Manager of the Respondent and was received on September 7, 1988. On Friday, September 16, 1988, Petitioner was released by the treating physician and given "return to work orders" instructing him to return to work without restrictions. The following work day, Monday, September 19, 1988, the Petitioner resumed his normal duties and work routine. However, after approximately one to one and one half hours of work, Petitioner reported that he had either re- injured himself or had aggravated the prior injury for which he had been treated. The Respondent again placed Petitioner on medical leave of absence due to the work-related injury and directed him for treatment to the outside physician. On Friday, September 30, 1988, Petitioner was again released by the treating physician without limitations or restrictions and given instructions to return to work. On the next workday, Monday, October 3, 1988, Petitioner failed to show up at his scheduled time. After being absent without authority or explanation for five consecutive work days, the Warehouse Manager, Mr. Julius Dix, mailed a letter to Petitioner. The letter explained that pursuant to Rule 12 of the Company's "working conditions", specifically failure to report to work as directed and being absent without explanation or authorization for five consecutive work days, the Company was placing Petitioner on suspension pending further review. Although dated October 5, 1988, the letter drafted by Mr. Julius Dix was actually written and sent on Friday, October 7, 1988. However, the date of the letter was made retroactive to the actual point of job abandonment pursuant to the so-called "48- hour rule". On October 17, 1989 Petitioner mailed a copy of a medical form from an outside physician indicating that Petitioner had been disabled from working from October 13 to October 25, 1988. It was received by an employee of Respondent on October 19, 1988. A similar form was mailed October 26, 1988 and received on October 28, 1988. There was no letter or personal explanation accompanying the medical form. Petitioner stated that upon being released by the treating physician, he contacted the Warehouse Manager, Mr. Julius Dix, and upon explaining that his injury continued to disable him from returning to work, was given permission to continue on medical leave and seek treatment by another physician. However, Mr. Dix testified that he had never given such permission or directions, nor had he received any communications or contact from Petitioner on Friday, September 30, or during the subsequent week. The more credible testimony is that Petitioner made no communication with his employer during the week of October 3, 1988. Following corporate review, required for long-term employees, Petitioner's employment was formally terminated for violation of the "48-hour rule" (no show/no call) under a subsequent letter from Mr. Julius Dix dated October 25, 1988. On November 8, 1988, Petitioner filed a charge of discrimination alleging retaliation. The Petitioner's work history demonstrates his knowledge of the 48- hour rule and prior compliance under similar circumstances. The 48-hour rule of Respondent has been applied in a consistent and uniform manner to a substantial number of other employees during a period of time immediately prior to the action taken with regard to the administrative termination of Petitioner's employment. The administration of this rule by the Company has resulted in termination of the non-complying employees.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued which denies the Petition for Relief. DONE AND ENTERED this 17th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact: Paragraphs 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 (sic) -- accepted in substance. Paragraphs 7 and 8 -- rejected as not relevant. COPIES FURNISHED: Guillermo A. Barbosa Dana Baird 854 Long Bay Court General Counsel Kissimmee, Florida Human Relations Commission 325 John Knox Road Thomas C. Garwood, Jr., Esquire Building F, Suite 240 Garwood and McKenna, P.A. Tallahassee, FL 32399-1925 322 East Pine Street Orlando, Florida Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment?
Findings Of Fact Larry Drake, who is black, began his employment at Whataburger, Inc., on May 2, 1983, as a management trainee in Pensacola. He trained first under June Bell at Unit No. 168, then under Kin Pearson at Unit No. 42. New Warrington Road On July 17, 1983, he became assistant manager at Unit No. 25, Whataburger's restaurant on New Warrington Road, where he was put in charge of the "early bird" or late night shift, from eleven at night to seven in the morning. Randall Potts occasionally worked the late night shift, and, during his tenure as assistant manager in charge of the shift, Mr. Drake supervised Elijah Johnson and Randy Cotton, as well. He initially supervised only one employee, but when Linda Blevins began on the late night shift, he also supervised her. As manager of Unit No. 25, Byron Reno was Mr. Drake's supervisor while Mr. Drake worked there. Mr. Reno came in at six or seven in the morning and left before the late night shift began, but he saw petitioner when the night shift started on numerous occasions, in addition to occasionally overlapping petitioner's shift in the morning. He worked with Mr. Drake when, as sometimes happened after Mr. Drake's initial three months at Unit No. 25, Mr. Drake worked the day shift. On October 30, 1983, Mr. Reno prepared a written evaluation of petitioner's job performance on a form calling for a "CLASSIFICATION EVALUATION" and for a separate "PERFORMANCE EVALUATION." Respondent's Exhibit B-2. On the "CLASSIFICATION EVALUATION" section, he gave hid a total score in the "needs improvement" range, although written comments indicated he was "FULLY ADEQUATE IN MOST AREAS." On the "PERFORMANCE EVALUATION, he gave him a score of 41.4, half a point from the "needs improvement" cut-off. These ratings may be lower than those for "the bulk of the" (T.i27) assistant managers. By May 5, 1904, when Mr. Reno prepared a second evaluation using the same format, he rated petitioner fully adequate overall, and gave him a score in the outstanding range for "CLASSIFICATION EVALUATION." Respondent's Exhibit A-2. Sometimes petitioner complained he was tired when he reported for work at Unit No. 25, and Mr. Reno felt his energy level was low in general. Mr. Reno also felt that inaccuracies in the daily reports and in inventory reports should be eliminated. During the time Mr. Drake worked at Unit No. 25, Sonya Jarman worked, at various times, on both day shifts. On the later shift, she was sometimes unable to leave at eleven, because petitioner had not yet arrived at work. Sometimes she telephoned petitioner to wake him up so he would relieve her. On the other hand, Mr. Drake also "stayed over plenty of times" (T.75, 76) for late replacements. On the earlier day shift, Ms. Jarman sometimes arrived to find that the night shift's paperwork had not been done. Mr. Drake asked her more than once to do the paperwork for the night shift, saying he would help serve customers. Sometimes he sat in his office, reading the paper and smoking cigarettes, while Ms. Jarman completed reports which night shift personnel were charged with filling out. One night Mr. Drake was on duty, Ms. Jarman was summoned "to fix the register because the drawer had jammed." (T.149). When she arrived, she found petitioner had left the premises, leaving the cash register with open drawer in the care of a subordinate. In general, Ms. Jarman characterized her experience working with petitioner as "wild." In her opinion, "Larry ... just wasn't Whataburger material." (T.14i) He did not pitch in when things got busy. He was slow on the grill ... and even on the board he wasn't fast (T. 148). For part of the time petitioner worked as assistant manager at Unit No. 25, Elijah Johnson worked under his supervision as a crew leader. Mr. Johnson once left the premises to buy Krispy Kreme doughnuts. Petitioner once left to buy cigarettes. Gregory Street When Mr. Drake tired of working the graveyard shift, he asked the senior area supervisor, Mr. Turbeville, for a new assignment. Mr. Turbeville obliged and petitioner began work at the Gregory Street Whataburger, Unit No. 42, as assistant manager for the day shift, on August 12, 1984, under the supervision of Bob Echois, a long-time Whataburger manager and a former marine. The third time in eight days that petitioner reported late for work, Mr. Echois, who had come to view petitioner as incompetent after he sent to the bank $100 more in cash than the deposit slip reflected, made a written report of Mr. Drake's tardiness and forwarded it to Mr. Turbeville, the area supervisor, who counselled petitioner, urging him to come to work on time. Mr. Turbeville was present on August 28, 1984, when petitioner arrived or 30 minutes late, his fourth late appearance for work at Unit No. 42. He had had a flat tire on his way to work, abandoned the car, and run the rest of the way. Mr. Turbeville asked for directions to the abandoned car, confirmed that the tire was flat, and asked Mr. Drake to report to his office the following day. At the meeting the following day, Mr. Turbeville placed him on disciplinary leave for four days for "excessive tardiness," Respondent's Exhibit A-30, after first, however, telling him he was going to fire him. To this, petitioner had responded with a claim that another employee, Ronnie Hill, had an even less satisfactory record for prompt arrivals which, he said, the time cards would bear out; and he threatened to retain a lawyer. It was true that Ronnie Hill arrived late some days, but it was because Mr. Echois instructed him to pick up certain supplies on his way to work. (T.157) Ronnie Hill is white. Unit No. 21 Instead of returning to Mr. Echois' supervision, petitioner reported to Unit No. 21 on September 2, 1994. He chose this assignment over returning to Unit No. 25, the alternative Mr. Turbeville offered. Petitioner felt the manager of Unit No. 21, Kim Pearson, did not back him up properly in his dealings with a subordinate, who was also a friend of the manager. In any event, the manager of Unit 21 gave petitioner a written reprimand for "[f]ailure to use proper set out procedure for breakfast items," Respondent's Exhibit A-28, on October 29, 1984, but, on November 3, 1984, rated him fully adequate in his overall classification and performance evaluations, while indicating that improvement was needed in certain categories, including dependability. Jack Riley replaced Don Turbeville as Whataburger's senior area supervisor. In speaking to managers in the area, he asked most of them, including Pearson, how he could help improve day-to-day operations. In reply, Mr. Pearson complained that Mr. Drake would not take directions. Mr. Riley had not received a good report from Mr. Turbeville about Mr. Drake, and, in visiting Whataburger outlets, had not been favorably impressed with petitioner. Once he walked in the unit... "[and] was probably in the unit ten to fifteen minutes before Larry even knew ... [H]e was busy reading the newspaper." (T.163) One Sunday afternoon he found petitioner watching a basketball game on a television set he had brought to work. (T.62). Unit No. 169 In order, he testified, to see how petitioner Drake would do in a "clean environment," Mr. Riley transferred him to Unit No. 169, where Jamie Harrelson was manager, and assigned him to the late night shift. The transfer was effective March 3, 1985. Respondent's Exhibit A-32. Some two weeks later, Mr. Riley terminated petitioner's employment, effective March 16, 1905. In the interim, Messrs. Drake and Riley spoke three times, the first at Mr. Riley's office when petitioner asked why he had been transferred. As reasons for discharge, Mr. Riley cited "poor attitude, failure to follow orders and being late for work on several occasions." Petitioner did not do his job well at Unit No. 169. He ignored instructions the manager left for him in a notebook, refused to look at her when she spoke to him, called the manager at home at 10:30 or 11:00 at night to complain about his schedule, called her at two in the morning to ask her permission to lend another Whataburger unit a CO2 tank which, as assistant manager, he might well have lent without special authorization, and arrived late for work by, at least on one occasion, well over an hour. That night he called to say "he was having his car repaired at almost 9:00 o'clock at night." (T. 203). Assistant managers who were white have been terminated "for being late to work in the same situation. (T.169) Mr. Riley believed that no Whataburger manager in Pensacola was willing to accept petitioner as an assistant manager. Employees' Race On June 2, 1985, Whataburger promoted Elijah Johnson, a black assistant manager, to manager. On January 27, 1985, Whataburger promoted Sandra Mack, another black assistant manager, to manager. Under Mr. Riley, who is white and still works as the senior area supervisor, Whataburger's employment of black persons reached a peak in the Tallahassee-Pensacola area. Of the 174 persons Whataburger employs in the area as "team members," 45, or 26 percent, are black. About 26 percent of the assistant managers in the area are also black and, since the recent promotions, three of eleven (or 33 percent) of the managers are black. Fifty-eight percent of the area's "team leaders" and 67 percent of the "breakfast coordinators" in the area are black. Until Mr. Drake made these accusations, neither Whataburger nor any of the managers with whom he worked had been accused of discriminating on grounds of race. Nor, however, was there a black manager in Pensacola until after petitioner was fired and complained to the FCHR.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2001.
The Issue The issues are whether Marie A. Erickson (Petitioner) timely filed her Charge of Discrimination against Memorial Hospital of Tampa (Respondent) in this case, and whether the Respondent discriminated against the Petitioner on the basis of age when the Respondent proposed to demote the Petitioner from charge nurse to a staff nurse position, which the Petitioner asserts constituted constructive discharge.
Findings Of Fact The Petitioner was born on May 28, 1939. Beginning in 1981 and at all times material to this case, the Petitioner, a registered nurse, was employed in the Respondent's psychiatric unit. The unit was typically referred to as "Four East," indicative of the physical location of the unit within the hospital facility. Prior to her employment in 1981 at Four East, the Petitioner had been employed as a nurse by the Respondent from 1973 to 1976. In 1990, the Petitioner was promoted to the position of "charge nurse" for the Four East night shift. The charge nurse was responsible for supervision of other nurses working in the unit on the same shift. In addition to performing typical nursing duties including rounds, the night shift charge nurse was responsible for completing unfinished tasks from previous shifts. The night shift charge nurse was responsible for obtaining and reviewing reports from previous shifts, including patient charts and nursing notes, and for reconciling conflicting information. The night shift charge nurse was also responsible for transcribing physician medication orders onto individual patient Medication Administration Records (MARs). MARs specifically identify medications to be provided to each patient, including dosages, frequencies, and times of administration. Generally, one nurse transcribed the information from physician orders to the MAR, and a second nurse reviewed and verified the transcription. Each MAR included space for the nurse who administered medication to a patient to document each administration. In March 1999, Jackie Larson became the "Nurse Manager" for the Respondent and was the Petitioner's immediate supervisor. By that date, the Petitioner was 59 years of age. At the direction of physicians, nurses were directed to observe some patients with greater frequency than others. Soon after becoming the nurse manager, Ms. Larson became aware that the Petitioner had reduced the frequency of observation for a specific patient without obtaining consent or direction from the patient's physician. Ms. Larson verbally counseled, and issued a written reprimand to, the Petitioner on March 18, 1999, for the incident. In May 1999, Ms. Larson completed a performance appraisal of the Petitioner with generally favorable comments, although Ms. Larson wrote that the Petitioner could be "scattered and difficult to follow with respect to her train of thought." Ms. Larson also noted a tendency by the Petitioner to shift responsibility for errors or uncompleted tasks to other staff members. Ms. Larson's May 1999 performance appraisal was consistent with those of previous supervisors. The evidence fails to establish that the Petitioner's age was considered by Ms. Larson in any manner when evaluating the Petitioner's performance in May 1999. By June 1999, Ms. Larson had discovered several errors in patients' charts and in MARs that had not been identified and corrected by the night shift. Ms. Larson was also concerned that the "cardex," an index card system used to provide medical information for each patient, was not being maintained. When Ms. Larson called the situation to the Petitioner's attention, the Petitioner complained that the night shift was being given too much responsibility and asked whether she was the only one being held responsible. Ms. Larson replied that all responsible parties were being advised of the problem, but that the night shift was tasked with the review of charting by earlier shifts, including the cardex files. The evidence establishes that other employees were also counseled regarding patient records issues. The evidence fails to establish that the Petitioner's age played any role in Ms. Larson's attempts to correct performance issues in the unit. On November 3, 1999, Ms. Larson issued to the Petitioner a written reprimand related to two issues. First, Ms. Larson was concerned about a patient who had been admitted without certification of insurance coverage and who had remained uncertified for three days after admission. The Petitioner had worked two of the three days and had not discovered that the patient's insurance certification had not been completed. Second, Ms. Larson was concerned about an undiscovered error in transcribing a physician's medication order onto an MAR which resulted in the patient receiving less medication that the physician had prescribed. Ms. Larson believed that the Petitioner should have discovered both issues as part of her responsibility to review patient documentation. The Petitioner's response was to suggest that the nurses on duty at the times of the incidents should be held responsible. She also inexplicably suggested that she should have been given two written reprimands, rather than combining the incidents into one document. The other employees involved in the referenced incidents were also disciplined for the errors. Ms. Larson did not reissue separate reprimands as invited by the Petitioner. The evidence fails to establish that Ms. Larson's imposition of discipline was related in any manner to the ages of any employees. In January 2000, the Petitioner failed to transcribe accurately onto a patient's MAR, medications that had been prescribed by the patient's physician which resulted in the patient not receiving prescribed medication for several days. On January 21, 2000, Ms. Larson issued a written reprimand to the Petitioner for the incident. Another night shift employee was also disciplined for failing to review the MAR that contained the Petitioner's error. At the time of the reprimand, the Petitioner asserted that she had been ill for a few days and those tasks had not been completed by persons whom she had asked. There is no evidence that Ms. Larson's disciplinary decisions relevant to this episode were related in any way to the Petitioner's age. On March 28, 2000, the Petitioner was disciplined for an error in failing to accurately transcribe a physician-ordered medication ("Lasix") onto a patient's MAR. The physician became aware of the error and instructed a staff nurse to report the error to Ms. Larson. After reviewing the matter, Ms. Larson told the Petitioner that she could choose to be reassigned to work in a staff nurse position on the night shift or in a staff nurse position on another shift. Ms. Larson advised the Petitioner that she could accept the reassignment without any reduction in salary, and that she would be suspended if she declined to accept reassignment. The Petitioner declined to accept the reassignment, and asked to meet with the Respondent's CEO, a meeting that did not occur. Ms. Larson shortly thereafter discussed the matter with the Respondent's Human Relations (HR) director, who apparently had some concern about implementation of the suspension option given Ms. Larson's concern about the Petitioner's performance. Subsequent to the discussion between Ms. Larson and the HR director, the proposed suspension was changed on March 30, 2000, to termination. The Petitioner was advised on that date that she could, again at her option, accept the reassignment without salary reduction or resign from employment. The Petitioner was asked to respond by April 7, 2000. On April 4, 2000, the Petitioner's physician advised her to take a medical leave of absence for a period of four weeks, and the Petitioner relayed the information to the Respondent. The Respondent approved the Petitioner's request for the medical leave of absence. Between March 30, 2000 and August 17, 2000, there was minimal communication between the Petitioner and the Respondent, other than regarding her medical leave of absence and return to work. On August 17, 2000, the Petitioner resigned from employment with the Respondent. The night shift charge nurse position was filled by an employee approximately 35-40 years of age, and younger than the Petitioner. The Petitioner sought no significant employment after her resignation on August 17, 2000, and at the hearing, she testified she has been physically unable to work. The Petitioner testified that she believed she was discriminated against because of her age, and that when Ms. Larson was hired as the Respondent's Nurse Manager she sought to terminate the employment of a number of long-time employees. The Petitioner asserted that an undated memo from Ms. Larson to the Four East staff indicated Ms. Larson's distain for long-term employees and an intent to discriminate on the basis of age. The memo addressed "attitude and morale" in the unit, and suggested that employees consider whether they were "negative, cynical, sarcastic, avoidant of change" and therefore "could be part of the problem." The memo further stated as follows: Ask yourself what you envision for this unit. Do you want to be part of a dynamic team of psych professionals who strive to deliver a superior service-not merely a mediocre, acceptable one. Or would you rather we all just leave you alone, not make waves, so you can slide off into retirement sometime down the road. The memo continued by asking employees to "develop a sense of pride in your work" and take the "opportunity for challenge, growth and improvement." Ms. Larson concluded by asking the employees to "identify and commit yourselves to 4 things that will either improve the attitude and morale, or directly improve the quality of work you deliver." Considered in its entirety, the memo indicates that Ms. Larson sought to elevate the performance of the employees under her supervision. The evidence fails to establish that Ms. Larson's reference to employee's "sliding off into retirement" indicated an intention to discriminate against employees based on age. The reference was applicable to any employee, regardless of age, working in the unit. The evidence fails to establish that the Petitioner's age was a factor in Ms. Larson's review of the Petitioner's job performance. The evidence also fails to establish that the Petitioner's age was a consideration in the disciplinary actions Ms. Larson imposed against the Petitioner. In May of 1999, Ms. Larson addressed performance concerns with another employee, Tina Pearson, who worked as the charge nurse on the evening shift and was approximately 37 years of age. Ms. Larson offered Ms. Pearson the option of being reassigned to a staff nurse position or resign. Ms. Pearson accepted the reassignment and then later resigned from her employment position. The Petitioner testified that the tasks assigned to the night shift charge nurse were excessive given staff levels, but there is no credible evidence that Ms. Larson significantly increased the work assigned to any of the shifts under her supervision. At the hearing, the Petitioner asserted that some of the records referenced in the disciplinary reports were falsified by the Respondent and that she had correctly transcribed the information onto the MARs. The original documents were reviewed during the hearing, and none exhibited any sign of alteration. There is no evidence that any of the documentation relevant to this proceeding was falsified or manipulated in any manner by any representative of the Respondent, and the Petitioner's assertions in this regard are rejected without reservation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Marie A. Erickson. DONE AND ENTERED this 6th day of June, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 6th day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert W. Horton, Esquire Alonda McCutcheon, Esquire Bass, Berry & Sims, PLC 315 Deaderick Street, Suite 2700 Nashville, Tennessee 37238 Thomas W. Caufman, Esquire Gallagher & Howard, P.A. 505 East Jackson Street, Suite 302 Tampa, Florida 33602 Helen A. Palladeno, Esquire Ogletree, Deakins, Nash, Smoak & Sweart, P.C. 600 North Westshore Boulevard, Suite 200 Tampa, Florida 33609 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.
Findings Of Fact The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr. Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment. Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary. 10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver". The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.
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 RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety. DONE AND ENTERED this 7th day of March, 1995, 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 7th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459 Petitioner's Proposed Findings of Fact The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon. Respondent's Proposed Findings of Fact The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Barry W. McCleary, Esquire 3 West Garden Street Suite 380 Pensacola, FL 32501 Donna Gardner, Esquire 213 South Alcaniz Street Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
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 25th day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 25th day of January, 2007.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Mr. Robinson, an African-American, was employed by Alliance at its Marianna, Florida, office from 1987 to 2006, when the facility closed. Mr. Robinson worked his way up from the assembly line, making $4.00 per hour, to steel yard coordinator, making $14.87 per hour. Mr. Robinson applied for the position of fabrication supervisor in 2004 and 2005. Both times, other people were chosen for the position. In 2004, Mr. Robinson was a finalist for the fabrication supervisor position. Steven Ramsey, a white male, was chosen for the supervisor position. Mr. Ramsey was hired from outside the company. Mr. Ramsey had considerably more experience as a supervisor than Mr. Robinson. In October 2005, the position for fabrication supervisor became vacant again. Mr. Robinson again applied for the position. The applicant pool was narrowed to two candidates, Mr. Robinson and John Warren (Mr. Warren), a white male. Both Mr. Robinson and Mr. Warren were interviewed by a committee consisting of the plant manager, the general manager, and hiring manager. Both candidates were current employees of Alliance. Alliance was looking for a supervisor with strong interpersonal skills. Both Mr. Robinson and Mr. Warren were valued employees of Alliance. In comparing their past evaluations at Alliance, Mr. Warren’s performance evaluations were stronger than Mr. Robinson’s. Mr. Robinson received two evaluations in 2004. On March 1, 2004, he received a score of 40 out of a possible 50. It was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. On May 12, 2004, he received a score of 40 on his annual evaluation. Again, it was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. Mr. Robinson received a score of 41 on his annual evaluation dated June 1, 2005. It was noted in his evaluation that he had improved in the area of interpersonal relationships over the past year. Mr. Warren received a score of 48 on his annual evaluation dated May 17, 2004. In the area of interpersonal relationships, his supervisor wrote: "Best in Fabrication." Leans forward to meet every challenge, keeps supervisors, peers and customers briefed at every step. Mr. Warren not only knows his customers, he has mastered the ability to identify customer needs before the customer realizes the need—and regularly exceeds customer expectations. Mr. Warren teaches customer service by example—what I call a "smooth operator." On his 2005 annual evaluation, Mr. Warren received a perfect score of 50. It was noted in his evaluation that Mr. Warren was a "solid role model." The evaluations of Mr. Warren and Mr. Robinson played an important role in determining who would be hired as fabrication supervisor. Based on the evaluations, Mr. Warren was the stronger candidate. Edward Mount (Mr. Mount) testified on behalf of Mr. Robinson. Mr. Mount is an African-American, who was employed with Alliance until November 2005. Mr. Mount left Alliance because the Alliance plant in Marianna was closing and would be relocated to Wisconsin. When Mr. Mount left Alliance, he was making $45,000 a year as a floor supervisor on the second shift. Mr. Mount felt that he had been treated fairly by Alliance and that Alliance had not discriminated against him based on his race during his employment with Alliance. During his tenure with Alliance, he was promoted more than five times and was given bonuses and raises. Mr. Robinson felt that Rick Frayniak (Mr. Frayniak), who was fabrication manager, was discriminating against him because of his race. However, Mr. Mount described Mr. Frayniak as a “hard but fair” supervisor, who had a hands-on approach to management. Mr. Mount never heard Mr. Frayniak make any racial remarks and did not feel that Mr. Frayniak had discriminated against him based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Robinson’s Petition for Relief. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 14th day of November, 2007.
