The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Julie Wells is the principal of AccuStaff.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Van Gandy be dismissed. DONE AND ENTERED this 10th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julie Wells AccuStaff 5710 North Davis Highway, Suite 5 Pensacola, Florida 32503 Van Gandy 8580 Vickie Street Pensacola, Florida 32514 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether, on the basis of Petitioner's age, Respondent (a staffing agency) unlawfully discriminated against Petitioner by having him terminated from his position with Respondent's client, in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent inSync Staffing, Inc. ("inSync"), is a company that recruits for, and supplies employees to, its clients, including, as relevant here, NBTY, Inc. ("NBTY"). inSync is an "employment agency" as that term is used in the Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13, infra. inSync does not meet face-to-face with most of the candidates it places with clients. On or around August 19, 2015, a recruiter at inSync forwarded the résumé of Petitioner Adalberto Lopez ("Lopez"), then 75 years old, to NBTY in hopes that NBTY might hire Lopez to fill the position of "QA Floor Inspector – Shift 1," a job that paid $13.50 per hour. About a week later, NBTY interviewed Lopez, and, on September 2, 2015, inSync informed Lopez that NBTY was offering him the job. Lopez accepted the offer. NBTY, not inSync, made the decision to hire Lopez. At all times, inSync acted essentially as a go-between, introducing Lopez to NBTY and helping him apply for the job, informing Lopez of NBTY's training and drug test requirements for new employees, and providing him with documents that NBTY wanted completed and returned in the ordinary course of new-hire onboarding. One of the documents that Lopez was required to sign and submit was the Employment Eligibility Verification (Form I-9), which is used by the U.S. Department of Homeland Security, administrator of the federal E-Verify program, to determine whether an employee is authorized to work in the United States. The E-Verify program provided NBTY with a result of Tentative Nonconfirmation ("TNC"), meaning that there was, at a minimum, some discrepancy between the information provided in Lopez's Form I-9 and that available in other public records. A TNC does not necessarily disqualify an employee from continuing to work, but it does need to be resolved to avoid the possibility of termination. In this instance, there is no persuasive evidence that the TNC led NBTY to take any adverse action against Lopez. There is, moreover, no evidence that inSync took any adverse action against Lopez as a result of the TNC. Lopez's first day of work at NBTY was September 14, 2015. The next day, NBTY terminated Lopez's employment. Nevertheless, Lopez showed up for work on September 16 and was told, again, that he no longer had a job. There is no persuasive evidence that inSync played any role in NBTY's decision to fire Lopez. inSync did, however, communicate this decision to Lopez, telling him that he had "been terminated due to not catching on fast enough." This was the reason for the termination given to inSync by NBTY. There is no persuasive evidence that this was not, in fact, NBTY's reason for firing Lopez. There is no persuasive evidence that NBTY eliminated Lopez's job, but there is, likewise, no evidence that NBTY filled the vacant position after Lopez's termination, nor (it obviously follows) any proof regarding the age of Lopez's successor (assuming NBTY hired someone to replace Lopez). There is no evidence concerning the candidates, if any, that inSync referred to NBTY after Lopez had been fired. Ultimate Factual Determinations There is no persuasive evidence that any of inSync's decisions concerning, or actions affecting, Lopez, directly or indirectly, were motivated in any way by age-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age discrimination could be made. Ultimately, therefore, it is determined that inSync did not discriminate unlawfully against Lopez on the basis of his age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding inSync not liable for age discrimination. DONE AND ENTERED this 26th day of October, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2017.
The Issue This is a case in which the Petitioner alleges that the Respondent has engaged in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by engaging in the following activities: (a) Discharging the Petitioner from her position of employment with Respondent because of Petitioner's race and (b) after discharging the Petitioner, continuing to seek applications for the position previously held by the Petitioner from similarly qualified or less qualified applicants. Subsequent to the filing of her petition for relief, the Petitioner filed a motion for default pursuant to Rule 22T- 9.008(5)(d), Florida Administrative Code, based upon the Respondent's failure to file an answer to the petition as required by the cited rule. By order dated September 21, 1987, the Respondent was given until October 5, 1987, within which to show cause as to why the relief requested in the motion for default should not be granted. The Respondent failed to respond to the order of September 21, 1987, and on October 7, 1987, an order was issued which included the following language: That pursuant to Rule 22T-9.008(5)(d), Florida Administrative Code, the Respondent is hereby deemed to have admitted all material facts alleged in the petition. That at the final hearing in this case the material facts alleged in the petition will be taken as established without further proof, but both parties will be afforded an opportunity at the final hearing to offer evidence regarding any additional relevant facts. On the day scheduled for the hearing, the Petitioner and her attorney appeared at the time and place set forth in the Notice of Hearing, but there was no appearance on behalf of the Respondent. Approximately 45 minutes after the scheduled commencement time, the Hearing Officer called the Respondent's offices in Jacksonville and was advised by an employee of Respondent that the Respondent did not intend to have anyone attend the hearing. Shortly thereafter the hearing was convened and the Hearing Officer received evidence offered by the Petitioner. At the conclusion of the presentation of evidence by the Petitioner, the Petitioner requested, and was granted, 15 days within which to file a proposed recommended order. Thereupon the record of the hearing was closed without any appearance having been made on behalf of the Respondent. On November 16, 1987, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order. Following the hearing, the Respondent was advised by letter of its right to file a proposed recommended order, but as of the date of this recommended order the Respondent has not filed any post-hearing document with the Hearing Officer.
Findings Of Fact On October 11, 1985, the Petitioner was referred by Job Finders of Florida, a private job placement service, to apply for a position with the Respondent, Handling Systems Engineering, Inc. The job the Petitioner applied for was Secretary/Dispatcher. The Petitioner met all of the qualifications for the job of Secretary/Dispatcher. The Petitioner was interviewed by Mr. Jim Hart, the manager of the Ocala office of the Respondent. After interviewing the Petitioner, Mr. Hart decided, on the basis of her experience and references, that the Petitioner was the best qualified of several applicants. In this regard, it is noted that the Petitioner's prior employment had required the performance of duties substantially similar to those of the Secretary/Dispatcher position with Respondent. Thereafter, in the afternoon or evening of October 11, 1985, Mr. Hart telephoned the Petitioner, offered her the job, and advised her that she was to report to work on October 14, 1985. On October 14, 1985, the Petitioner reported to work at the Ocala office of the Respondent and immediately began performing the duties of Secretary/Dispatcher. During the work day on October 14, 1985, the Petitioner received a telephone call from Mrs. Lou Mohrman, the managing director of the Respondent. Mrs. Lou Mohrman welcomed the Petitioner to her position of employment and stated that she was pleased with the Petitioner's placement with the company. On October 15, 1985, Mr. L. D. Mohrman, president of Respondent, accompanied by Mrs. Lou Mohrman, managing director, visited the Ocala offices of the Respondent. After engaging in a boisterous conversation with Mr. Hart and visually ascertaining the Petitioner's race, Mrs. Mohrman summarily dismissed Petitioner without articulating a legitimate business reason for the termination. Within the next few days the Respondent listed the Secretary/Dispatcher position as vacant and continued to seek to fill the position with individuals with qualifications similar to or less than the qualifications of the Petitioner. The Petitioner is a black female. She is a person within the meaning of Sections 760.02(5) and 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. The dismissal of the Petitioner from her position of employment with the Respondent was motivated by the president and the managing director ascertaining the Petitioner's race. The dismissal of the Petitioner was motivated solely by her race. The Petitioner's starting salary at the Respondent company was $4.50 per hour for a 40-hour work week. After her termination, the Petitioner sought employment elsewhere and obtained another job in January of 1986, where she worked until November of 1986. In November of 1986 the Petitioner voluntarily left her job in order to finish school. When she began work in January of 1986 the Petitioner was making $3.80 per hour. When she quit in November of 1986 she was making $4.00 per hour.
Recommendation Based on all of the foregoing, it is recommended that the Florida Commission on Human Relations issue a final order to the following effect: Concluding that the Respondent has engaged in an unlawful employment practice; Prohibiting the Respondent from terminating any employee on the basis of the employee's race; Requiring the Respondent to offer reinstatement to the Petitioner under the terms and conditions of employment to which she would be presently entitled if she had been continuously employed, including any raises to which she would have been entitled on the basis of longevity. Requiring the Respondent to pay back pay to the Petitioner from the date of termination until November of 1986 in an amount equal to the total amount the Petitioner would have earned as a Secretary/Dispatcher during that period, less any amounts actually earned during that period; and Requiring the Respondent to pay to the Petitioner her reasonable attorney's fees incurred in this case. DONE AND ENTERED this 4th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3048 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraph 1: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraph 2: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraphs 3, 4, 5, 6,7, and 8: Accepted Paragraphs 9, 10, 11, and 12: Not included in findings of fact because they are subordinate procedural details. Paragraphs 13, 14, and 15: Covered in prior findings. Paragraph 16: Accepted Paragraph 17: Covered in prior findings. Findings proposed by Respondent: (None) COPIES FURNISHED: Harry L. Lamb, Jr., Esq. Perry & Lamb, P.A. 312 W. First Street Suite 605 Sanford, Florida 32771 Mr. L. D. Mohrman, President Handling Systems Engineering, Inc. 3000 West 45th Street Jacksonville, Florida 32209 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue Whether Respondent committed one or more unlawful employment practices against Petitioner as alleged in the subject Petition for Relief.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was an employee of Respondent with permanent status in the state career service system. Petitioner began his employment with Respondent on February 26, 2001, and was assigned to the Lake Worth area until his employment was terminated on January 30, 2009. During his tenure with Respondent, Petitioner worked as a K-9 officer as the handler of a dog trained to detect drugs. Petitioner was frequently involved with high-risk traffic stops. Petitioner received a “meets standards rating” on his most recent performance evaluation. Prior to the events that led up to this proceeding, Petitioner had no history of being disciplined by Respondent. Dr. Richard Marques specializes in internal medicine and treats a broad spectrum of medical issues including endocrine problems. He has been Petitioner’s physician for eight years. Prior to September 2003, Petitioner began to experience fatigue, irritability, and low energy. Petitioner testified that he slept up to 16 hours some days. During that time, and at all times relevant to this proceeding, Petitioner was working his assigned duties. Those duties included a 40-hour shift plus occasional overtime, primarily on weekends. At the request of Dr. Marques, on September 12, 2003, Petitioner presented for blood work at LabCorp, an independent, reputable, testing lab. From the results of the testing, Dr. Marques determined that Petitioner suffered from low testosterone levels or a condition known as hypogonadism. Dr. Marques recommended that Petitioner seek treatment for his testosterone deficiency from a physician or facility specializing in problems of the endocrine system. Dr. Marques did not recommend a particular physician or facility to Petitioner. Instead, Dr. Marques left that decision to Petitioner. Dr. Marques contemplated at the time of his recommendation that Petitioner would be examined in a hospital or other medical facility by a doctor specializing in the endocrine system. Dr. Marques testified that there are two types of hypogonadism, with one type originating from the adrenal gland and the other originating from the pituitary gland. Testing of the type an endocrinologist would do in a testing facility such as a hospital is required to determine the source of the testosterone secretion. Dr. Marques referred Petitioner for further evaluation because he does not do the type of testing that an endocrinologist does. After reading an advertisement in a magazine for a facility named PowerMedica in January 2004, Petitioner sought treatment from that facility. After reviewing PowerMedica’s website, Petitioner concluded that it was a licensed medical facility and submitted a form medical history. In response to his submittal, someone purporting to be from PowerMedica instructed Petitioner to submit a blood sample for analysis by LabCorp. Petitioner complied with that request. Thereafter, Petitioner received a telephone call from someone at PowerMedica who purported to be a doctor. Following that telephone conversation, Petitioner received at his home via Federal Express a shipment that contained testosterone, which is an anabolic steroid. An anabolic steroid is, pursuant to the provisions of Section 893.03(3)(d), a Schedule III controlled substance. Section 893.13(6)(a), Florida Statutes, provides as follows: (6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. At no time relevant to this proceeding did Petitioner enter the building that housed PowerMedica, nor was he physically examined by anyone associated by PowerMedica. Petitioner followed up with Dr. Marques while Petitioner was taking the anabolic steroids. Dr. Marques considered Petitioner’s treatment to be appropriate. Dr. Marques saw no signs that Petitioner was abusing the anabolic steroids, and noted that Petitioner’s condition improved. Petitioner stopped receiving anabolic steroids from PowerMedica in October 2004. Dr. Marques wrote a note on September 22, 2003, reflecting, in relevant part, the following: “. . . given the severity of his high viral titer,4 I have asked him to change his night shift duty to day time.” After Petitioner requested that he be reassigned to day-time duty and presented that note to his superiors, Respondent reassigned Petitioner to day duty. At all times relevant to this proceeding, Petitioner was able to perform his job duties. Other than the request for a change from the night shift to the day shift, Petitioner did not tell Respondent that he was having difficulties performing his duties. At no time prior to his interview on July 10, 2008, which will be discussed below, did Petitioner tell Respondent that he was taking anabolic steroids, that he suffered from low testosterone levels, or that he suffered from hypogonadism. At no time did Petitioner request that he be evaluated to determine whether he was fit for duty. In early 2005, it became public knowledge in south Florida that the U.S. Food and Drug Administration (USFDA), working in conjunction with the Broward County Sheriff’s Office (BCSO), was investigating PowerMedica based on allegations that it had unlawfully sold steroids and Human Growth Hormones. As part of its investigation, the USFDA seized records pertaining to PowerMedica’s customers. There was no evidence that any information seized by the BCSO or the USFDA was illegally seized. The joint investigation culminated in the closure of PowerMedica’s operations. In March 2008, a sergeant and a lieutenant employed by Respondent and assigned to its Professional Compliance Bureau met with a sergeant employed by BCSO. During that meeting, the BCSO sergeant showed Respondent’s employees a list containing PowerMedica’s customers. That list contained Petitioner’s name. At Respondent’s request, in April 2008, the USFDA provided copies of records to Respondent that had been seized from PowerMedica. That information provided details as to Petitioner’s dealings with PowerMedica. On July 10, 2008, Petitioner was subjected to a formal interview by representatives of the Respondent. In that interview, Petitioner admitted his dealings with PowerMedica and, while denying any wrongdoing, admitted the material facts set forth above pertaining to those dealings. Petitioner declined to divulge the underlying condition for which he sought treatment. Further, Petitioner acknowledged that Dr. Marques had informed him that his insurance company would likely not pay for his treatment from PowerMedica or for similar treatment. Specifically, Petitioner admitted that he obtained testosterone without being examined by a PowerMedica physician, he admitted that he knew about the investigation and subsequent closure of PowerMedica, and he admitted that he knew the reasons for the closure of PowerMedica. Petitioner admitted that he never volunteered to come forward to Respondent or any other law enforcement agency to discuss his dealings with PowerMedica. Petitioner referred to himself as a victim of PowerMedica’s fraudulent practices, but he admitted that he never advised Respondent prior to his interview that he had been a victim of PowerMedica. On September 9, 2008, Respondent assigned Petitioner to administrative duty that was to be served at Petitioner’s residence from 8:00 a.m. to 4:00 p.m. Monday through Friday. The letter advising Petitioner of this assignment and setting the parameters for the assignment, included the following, beginning at the second full paragraph: You will remain on administrative duty until further notice. This action is being taken based upon the fact you are under investigation by this agency. You are to turn in all of your assigned division equipment including uniforms, badges, firearms, any department identification, and other division property. Your approval to work off-duty police employment (ODPE) and/or any type of agency secondary employment has been withdrawn for the duration of the administrative duty. Your eligibility to resume OPDE/secondary employment will be reviewed by your troop commander at the conclusion of the administrative duty assignment. Your failure to comply with this directive will subject you to disciplinary action. On November 14, 2008, Petitioner filed his Complaint of Discrimination with the Florida Commission on Human Relations. After that date, but before his termination, Petitioner requested permission to be able to work as a driver for Federal Express during hours other than the hours he was serving his administrative duties. Respondent denied that request. While Petitioner asserts that the denial was in retaliation for his filing the Complaint of Discrimination, that assertion is based on supposition. Petitioner presented no direct evidence to support his assertion and any circumstantial evidence is insufficient to establish the assertion. By letter dated January 14, 2009, and received by Petitioner on January 20, 2009 (the termination letter), Respondent terminated Petitioner’s employment. Approximately 20 days after his termination, Respondent retrieved from Petitioner the dog that Petitioner had handled for approximately three years. Petitioner asserts that Respondent took his dog in retaliation for his amending his Complaint of Discrimination to include a claim of retaliation relating to the denial of the request to work part-time for Federal Express. Again, Petitioner’s assertion is based on supposition and is not supported by direct or circumstantial evidence. The termination letter, which is part of Petitioner’s Exhibit 11, sets forth extensive factual allegations pertaining to Petitioner’s dealings with PowerMedica as the basis for the termination. The letter also set forth the statute and policies that Petitioner had allegedly violated. The letter cited the following as “Aggravating Circumstances”: This case is aggravated because through your training, work experience, and knowledge of the law you are held to a higher standard of reasonableness and conduct. You should have been well aware of the stigma attached to the type controlled substances you purchased and used, especially Petitioner points to Respondent’s characterization of anabolic steroids as having a “stigma” as evidence that Respondent discriminated against him based on his disability. That argument is without merit. The greater weight of the credible evidence established that Respondent terminated Petitioner’s employment based on its determination that Petitioner had unlawfully obtained and consumed a Schedule III controlled substance without obtaining a lawful prescription and because he failed to come forward with information about PowerMedica after he knew that PowerMedica was being investigated by the USFDA and the BCSO. Petitioner did not establish that Respondent’s articulated reasons for its employment decision were pretexts for an unlawful employment practice. Indeed, there was no evidence that as of the date of the termination letter, Respondent knew the nature of Petitioner’s medical condition, or that it had any reason to perceive him as being disabled.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2009.
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Petitioner was subject to an unlawful employment practice by Respondent, Meals on Wheels, Etc., Inc., on account of his race and disability, as a result of Respondent's maintenance of a hostile work environment, or as retaliation to his opposition to an unlawful employment practice, in violation of section 760.10, Florida Statutes.
Findings Of Fact As its name implies, Respondent is a non-profit charitable organization engaged in the business of providing free meals, transportation services, and related assistance to senior citizens in the Sanford, Florida, area. Petitioner is a 64-year-old black male of Jamaican origin. He worked as a driver for Respondent from August 13, 2012, until October 23, 2014, when he was discharged for violating a company policy. As a condition of employment as a driver, Petitioner was required to submit a medical fitness form regarding his current medical condition. In the form filed on July 30, 2012, he denied having any medical issues except non-insulin dependent diabetes, which is controlled by diet. See Ex. 21. An updated form was submitted on August 25, 2014, reflecting no change in his medical condition. Id. No other medical records were submitted to substantiate any other medical condition. When he interviewed for the position, Petitioner did not tell Respondent that he needed an accommodation for his diabetes or that he had any work restrictions. As such, management never considered Petitioner to have a disability. Petitioner also provided a post-employment medical questionnaire on August 8, 2012, which stated that he had diabetes but that it was controlled by diet. Id. No other injuries, illnesses, or health abnormalities were reported. As a driver, Petitioner was expected to adhere to Respondent's safety rules. To ensure compliance with the rules, shortly after being hired, Petitioner was required to read, and then sign a statement acknowledging that he understood, the organization's General Policies. See Ex. 1, p. 4. He was also required to acknowledge receipt of its Employee Handbook containing the Safety Policies and Procedures. See Ex. 3. In addition, Respondent's Transportation Coordinator, Mark Taylor, conducted periodic refresher training sessions with all drivers, including Respondent. One of Respondent's most significant safety rules, if not the most significant, is a rule that requires drivers to provide door-to-door service. It provides in relevant part that "[u]pon arrival at a client's home, [a driver must] go to [the] door and knock. If the client needs help, you will be right there to assist." Ex. 1, p. 1, ¶ 6. This rule is intended to promote client safety and to ensure, to the extent possible, that Respondent will not face legal exposure because, for example, a client falls down while walking unassisted to or from the vehicle. To comply with the above rule, drivers are required to get out of the van, go to the front door, knock, and then assist the client walking to the van. This is because the clients are elderly, some use walkers, and they need assistance from the driver while getting to and from the van. On August 21, 2014, Petitioner signed another statement acknowledging that he understood the policy, he agreed to follow it at all times, and he understood that "[t]ermination will result in not following this important safety rule." Ex. 7. As a corollary to the above safety rule, drivers are instructed that they should never honk the vehicle's horn when they arrive at a client's home. Instead, they should get out of the vehicle and go to the front door of the residence. Petitioner was specifically told about the no-honking rule at two safety meetings. The incident underlying Petitioner's discharge occurred on the morning of October 23, 2014. Petitioner was told to pick up Angelo Rosario and transport him to an appointment. The client is in his 80s, suffers from Alzheimer's disease, and uses a walker. He resides in a mobile home-type community with his daughter; and the driveway in front of the mobile home is unpaved with exposed roots making it easy to trip or fall. Although Mr. Rosario was not one of his regular clients, Petitioner had picked him up at least 12 times in the previous 30 days and was familiar with his condition and the area in which he lived. The testimony describing the incident is conflicting. However, the accepted testimony shows that Petitioner arrived at the Rosario residence while Petitioner was on a personal cell phone call to his sister. When he finished the call, Petitioner blew the horn to alert the client that he was there. The honking was loud enough to annoy Rosario's neighbor who approached Petitioner's vehicle complaining about the noise. Suspecting that the neighbor's concern might cause a problem, Petitioner immediately telephoned Mr. Taylor and told him that he had blown the horn and anticipated that someone might be calling him with a complaint. Mr. Taylor told Petitioner that honking the horn was inappropriate, it violated an important safety rule, and he could not just sit in the van waiting for the client. Petitioner admits that during the telephone call, he shouted at Mr. Taylor and claimed he was unaware of the rule. After Mr. Taylor instructed Petitioner to go to the front door to pick up the client, Petitioner exited the vehicle and escorted the client to the van. After speaking with Petitioner, Mr. Taylor immediately telephoned the client's daughter to get her version of events. Mr. Taylor learned that honking had recently occurred rather frequently at the client's home, and he believed that Petitioner was the responsible driver, as Petitioner had transported the client at least 12 times during the previous 30 days. Mr. Taylor immediately reported the incident to the Executive Director, Sherry Fincher, who evaluated the matter, and then decided to terminate Petitioner for violating the organization's most important safety rule. Notwithstanding Petitioner's claim to the contrary, it is the Executive Director alone, and not Mr. Taylor, who makes the decision to terminate an employee. A memorandum was prepared by Ms. Fincher that day indicating that Petitioner was being terminated "due to not following agency policies regarding door-to-door pick up of clients[,] . . . one of the most important policies to ensure the safety of all clients." Ex. 20. This was consistent with Respondent's policy, and one that Petitioner clearly understood. Petitioner's race and diabetic condition played no role in the decision. Petitioner's Employment Charge of Discrimination was filed one month later. Prior to that time, there is no competent evidence that Petitioner had ever complained to Taylor or Fincher about any discriminatory practices by the organization. Since the inception of this case, Petitioner has contended that he has a disability within the meaning of the law. At hearing, however, he acknowledged that his diabetic condition does not affect any major life activity. To support his disability discrimination claim, he testified that on an undisclosed date in 2014, he asked Mr. Taylor if he could eat meals or snacks at designated times because of his diabetic condition but was told he could not. The accepted testimony shows, however, that Mr. Taylor advised him that he could eat whenever necessary, as lunch and break hours are not set in stone. To avoid a drop in his blood sugar, Petitioner was told that he was free to eat or drink something at any time, or even bring a bag lunch with him while driving his routes. Even assuming arguendo that Petitioner had a disability, which he does not, the contention that a disability formed the basis for an unlawful employment practice must fail. Petitioner also contended that Belinda Stum, a white female lead driver, was treated differently than he and was given more "leeway" when she violated a rule. However, the only evidence concerning a rule violation by Ms. Stum involved a different rule. After a client accidentally slipped while being assisted out of the van, Ms. Stum immediately reported the incident to Mr. Taylor and then filed a completed incident report. Other than Ms. Stum, Petitioner was unable to specifically identify any other similarly-situated employees outside his protected class (or even ones within his own class) who were allegedly treated differently than he. Although a client testified at hearing that on several occasions she had observed Ms. Stum sitting in her van when picking up clients, even if this is true, the client admitted that she never reported this to anyone at Respondent's organization so that the alleged violation could be investigated and disciplinary action taken, if appropriate. Petitioner also contends he was subjected to a hostile working environment due to his race and disability. He claimed that Mr. Taylor, a white male, called him "boy," required him to answer "yes sir," and would gesture a "cut throat" sign towards him, threatening him to keep his mouth shut. This assertion was not corroborated by any other evidence, and Mr. Taylor denied the charge. The testimony of Mr. Taylor is accepted as being more credible on this issue. Assuming arguendo that he had a disability, there is no evidence whatsoever that Petitioner was subjected to a hostile working environment due to his diabetic condition. Finally, there is no evidence regarding the charge that Petitioner was terminated in retaliation for engaging in a protected activity. Indeed, Petitioner submitted no credible proof that he complained to management regarding any discriminatory practices that precipitated the alleged retaliation, other than "standing up for his rights" on the day he was terminated, and Taylor and Fincher credibly testified that they were unaware of any such complaints. Complaints made at hearing that he is still owed money and was never paid for training are not germane to this dispute. Petitioner is now working part-time as a driver for a retirement center in the Sanford area. He says he is also employed as a substitute teacher for the Seminole County School Board. Both jobs equate to full-time employment. According to evaluations and testimony at hearing, Petitioner was considered a "good worker," "likeable," and someone who "did a pretty good job." While his evaluations showed he met expectations, his last evaluation noted that he needed improvement in following orders. Except for being "written up" one time for being late to work, Petitioner had no other disciplinary action.
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, with prejudice. DONE AND ENTERED this 24th day of November, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2015.
The Issue Whether Respondent, McDonald's Corporation, discriminated against Petitioner, Carolyn Hadley, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2000).
Findings Of Fact Petitioner is an African-American female who worked at the Cocoa Beach, Florida, McDonald's restaurant from October 1, 2000, until March 17, 2001. She voluntarily terminated her employment. Respondent owns and operates restaurants and is subject to Chapter 760, Florida Statutes (2000). Respondent has an extensive, well-conceived, "Zero Tolerance" policy which prohibits unlawful discrimination. This policy is posted in the workplace, is distributed to every employee at the time he or she is employed, and is vigorously enforced by management. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Petitioner did not avail herself of Respondent's "Zero Tolerance" policy. Petitioner complains of two isolated instances of what the evidence clearly shows to be workplace "horseplay" as the basis of her unlawful employment discrimination claim. On one occasion, a shift manager placed a promotional sticker on Petitioner's forehead. The second involved ice cream being placed on Petitioner's face. The evidence reveals that the "horseplay" complained of was typical of this workplace and not race or sex based. Practical jokes, food fights, ice down shirt backs, and similar activities, while not encouraged by corporate management, were a part of the routine at this restaurant. Petitioner was not the singular focus of the "horseplay"; it involved all employees. There is no evidentiary basis for alleging that it was racial or sexual in nature, as it involved employees of differing races and sexes. Approximately a month after the latest of the incidents complained of, on March 17, 2001, Petitioner voluntarily terminated her employment. Six months later, in September, 2001, Petitioner complained to Dexter Lewis, an African-American corporate employee who is responsible for investigating claims of unlawful workplace discrimination, about the two incidents. She claimed that she had been embarrassed by the incidents but did not suggest to him that they had been racially or sexually motivated. Mr. Lewis investigated the alleged incidents; he confirmed that the incidents had occurred and that similar incidents were widespread, but not racially or sexually motivated; he reprimanded the store manager and shift manager for their unprofessional management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of September, 2004. COPIES FURNISHED: Carolyn Hadley 135 Minna Lane Merritt Island, Florida 32953 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia Brennan Ryan, Esquire Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
