The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Residential Acceptance Corporation, subjected Petitioner, Mary R. Setzer, to unlawful employment practices on the basis of her sex or marital status, in violation of section 760.10, Florida Statutes.
Findings Of Fact Based on the testimony and exhibits offered at the final hearing, the following Findings of Fact are made. At all times material this matter, Petitioner was an unmarried woman. Petitioner, a resident of the state of Tennessee, was licensed to originate loans in Tennessee and Kentucky. She has been employed with RAC as a retail mortgage loan officer since December 22, 2014, without any gaps in employment. At all times material to this matter, Petitioner has not been terminated, nor has she voluntarily resigned from her employment with RAC. Respondent is a lender that operates a business engaging in underwriting, processing, and funding loans submitted by third-party loan originators. Respondent works with mortgage brokers, originators, and processors to approve and close loans. Respondent, a full-service mortgage company, operates in 25 states throughout the United States. Respondent is based in Tampa, Florida. The RAC procedure for processing loans requires the mortgage loan officer to submit a loan package to a designated loan processor. The loan processor then assigns the loan package to an underwriter for processing. Once the loan officer has submitted the loan package to the loan processor, the loan officer is responsible for “supervising” the transaction by providing additional information necessary for completion. Mortgage loan officers are then paid commission on each loan that closes, which they receive by submitting the corresponding pay sheet and credit invoices through payroll. Respondent employs six mortgage loan officers. Three of these loan officers are female, and three are male. Petitioner was one of the three female loan officers. As a loan officer employed by RAC, Petitioner agreed to submit her loans exclusively to RAC for origination, processing, underwriting, and funding. Petitioner maintained a Kentucky mortgage license sponsorship with Respondent until February 2018. However, as of the date of the hearing, she continued to maintain her company-sponsored license in Tennessee. Throughout her employment with Respondent, Petitioner was supervised by Nick Ball, and she submitted loans for processing to Carol Estrada, a loan processor. Between 2015 and 2016, Petitioner submitted and received commissions on 12 loans. Although Petitioner remains employed, and is able to submit loans to Respondent for processing, she has not submitted a loan since 2016. Petitioner alleged Respondent discriminated against her based on her sex and marital status. The first allegation relates to Petitioner’s claim that Respondent colluded with her former employer regarding an unrelated discrimination complaint. By way of background, Petitioner was employed by First Choice Lending (“FCL”), a loan service company with offices in Tennessee and Kentucky. Petitioner filed a charge of discrimination against FCL in Tennessee alleging she had been wrongfully terminated based on her sex and marital status. Petitioner testified that she did not disclose the FCL discrimination complaint to Respondent. However, one month after she began working with Respondent, James Mannion, an account executive for Respondent, contacted Petitioner regarding her former employment with FCL. Petitioner testified that she disclosed to Mr. Mannion that she had been wrongfully terminated by FCL due to her sex and marital status. Petitioner testified that Mr. Mannion shared this information with Ms. Estrada. Petitioner alleged, without more than her own belief, that after learning about the FCL complaint, Ms. Estrada caused intentional and prolonged turnaround times for loan processing which delayed her closings. Petitioner claimed that Ms. Estrada would not process her loans as quickly as she did for male loan officers. Petitioner alleged that the delays in loan processing resulted in loss when borrowers withdrew their loans. Petitioner testified that she reported the issues she had with Ms. Estrada to Mr. Ball. According to Petitioner, Mr. Ball did nothing to resolve the issues. However, on March 18, 2015, Mr. Ball sent an email to Petitioner and other RAC employees scheduling a meeting to discuss loan submissions. Ms. Estrada was one of the employees instructed to attend the meeting. Regarding any subsequent concerns about Ms. Estrada’s processing performance, Mr. Ball suggested that Petitioner call Ms. Estrada to follow up on requests. In an email dated March 25, 2015, Mr. Ball stated, “glad you two could clear the air … let me know if you have any more issues.” Finally, when Ms. Estrada was out sick, he suggested that Petitioner could assist with processing to move the loan packages along in the process. The evidence did not establish that Ms. Estrada’s processing of Petitioner’s loans was related to discrimination based on her sex or marital status. The alleged comparator Petitioner offered as someone who was treated better than her was a married, male mortgage loan officer. Petitioner testified that at some point after the telephonic meeting with Mr. Ball, she was contacted by one of the male loan officers who had also been on the call. Petitioner testified that the loan officer shared with her that Ms. Estrada had done a good job processing his loans and that his loans had been closing quickly. However, Petitioner was unable to identify the name or any personal identifying information about the male loan officer. Petitioner did not offer any evidence to demonstrate the marital status of the alleged comparator. The greater weight of the evidence establishes that neither the FCL complaint nor the allegations alleged regarding RACs collusion with FCL involved any claim of discrimination recognized under the Florida Civil Rights Act (“FCRA”). More importantly, the claim involved a different employer. In her Complaint, Petitioner also alleged that Respondent caused the devaluation of her reputation and customer base. One of her past clients, Ms. Moore, is one of the clients she alleges had an issue with the delayed processing of her loan. Ms. Moore filed a complaint in July 2015. Respondent received the complaint filed with the Consumer Resources Division of the Tennessee Department of Financial Institutions regarding Respondent’s services (“Moore Complaint”). In the Moore Complaint, Ms. Moore claimed Respondent unprofessionally handled her loan application, which caused delays and expenses to complete the transaction. Upon receipt of the complaint, Respondent investigated the loan transaction history, and correspondence between Respondent and the complainant. After investigating the Moore Complaint, Respondent determined that Ms. Moore’s complaints related to issues that could commonly arise during loan processing. Respondent then sent a letter to Ms. Moore, notifying her that they found no irregular activity associated with the loan transaction. Regarding the allegation that RAC caused Petitioner’s reputation to be devalued in her profession, and that RAC made her less valuable to clients, Petitioner failed to meet the burden of proof. Petitioner also testified that in July 2016, Mr. Ball shared her contact information with a recruiter in an attempt to get Petitioner to leave the company. While Petitioner testified that the recruiter reached out to her numerous times beginning in September 2016, Petitioner admitted that she never actually spoke to the recruiter and, therefore, could not confirm whether her beliefs were correct. On or about February 1, 2018, Respondent received notice from the Nationwide Multistate Licensing System & Registry (NMLS) that Petitioner had ended her Kentucky mortgage license sponsorship with the company. Mr. Ball emailed Petitioner and asked whether she was leaving RAC. Petitioner responded that she was not leaving the company. In January 2019, Respondent received a Cease and Desist Letter from Petitioner alleging RAC shared Petitioner’s personal information with FCL; participated in retaliation initiated by FCL; violated her constitutional rights; and caused harm to her business and professional reputation. In a letter dated February 13, 2019, RAC denied the allegations. Petitioner also alleged that Respondent hacked into her LinkedIn account to harass her. However, the evidence demonstrates that Petitioner’s anniversary post was automatically generated by LinkedIn. Based on the LinkedIn programming, the system automatically shares the employment anniversary with an employer and other significant dates (entered by the user upon creation of their account) on the user’s network account. In addition, the platform generates reminders or notices based on the user’s connections and background. Overall, the evidence offered at hearing was insufficient to demonstrate any adverse action has been taken against Respondent due to her sex or marital status. There are also no similarly situated employees outside of Petitioner's protected class to which Petitioner can be compared. Moreover, Petitioner offered no evidence at the hearing that she lost any commission or income due to the alleged discrimination. Rather, the evidence demonstrates she has not submitted a loan for processing, which is necessary for her to be paid commission, since 2016. The evidence was insufficient to demonstrate that RAC subjected Petitioner to discriminatory action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Residential Acceptance Corporation, did not commit any unlawful employment practice as to Petitioner, Mary Setzer, and dismissing the Petition for Relief filed in this matter. DONE AND ENTERED this 28th day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Mary Setzer 813 Chickamauga Avenue Knoxville, Tennessee 37917 Phillip Harris, Esquire Constangy, Brooks, Smith & Prophete, LLP 100 North Tampa Street, Suite 3350 Tampa, Florida 33602-5832 Jordan Elizabeth Koziol, Esquire Constangy, Brooks, Smith & Prophete, LLP 100 North Tampa Street, Suite 3350 Tampa, Florida 33602-5830 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
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
Findings Of Fact Mr. Phillips is a person of the masculine sex. He was employed as a maintenance foreman at Respondent Martin Stables South, Inc. (Martin Stables), of Reddick, Florida, from May 19, 2005, until June 27, 2005. Edmund Martin is the president of Martin Stables. He is also the only stockholder. Mr. Martin is aware of the number of employees working at Martin Stables. He testified that Martin Stables had less than 15 employees during the period May 19, 2005 to June 27, 2005. Moreover, he testified that Martin Stables never employed 15 or more employees in the current year, or in the year preceding May 19, 2005. He further stated that Martin Stables had never employed as many as 15 employees at any given time. Mr. Phillips provided no evidence contradicting this assertion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations dismiss the Petition. DONE AND ENTERED this 11th day of May, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John L. Phillips Post Office Box 771011 Ocala, Florida 34477 David A. Glenny, Esquire Bice Cole Law Firm, P.L. 1333 Southeast Twenty-Fifth Loop Suite 101 Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in the case is whether Marcella Taggart (Petitioner) was the subject of unlawful discrimination by Publix Super Markets, Inc. (Respondent), in violation of chapter 760, Florida Statutes.
Findings Of Fact Beginning in June 2007, and at all times material to this case, the Petitioner was employed as a systems analyst in the Respondent’s Information Technology (IT) department. The Respondent is a Florida corporation that operates a chain of grocery stores. The Respondent’s IT department is a high-security unit. A systems analyst working in the IT department has access to the Respondent’s financial and product pricing systems. Such an employee would also have access to some confidential human resources department data, including names, addresses, social security numbers, and banking information of the Respondent’s other employees. At the hearing, the Petitioner testified that some co- workers harassed her by repeatedly asking questions about her hair when she wore it in a braided hairstyle. The Respondent has adopted an explicit policy prohibiting all forms of harassment. In relevant part, the policy states as follows: The very nature of harassment makes it virtually impossible to detect unless the person being harassed registers his or her discontent with the appropriate company representative. Consequently, in order for the company to deal with the problem, offensive conduct or situations must be reported. The policy identifies a specific formal process by which an employee who feels harassed may lodge a complaint about such behavior. The Petitioner did not file a formal complaint about the alleged harassment related to her hairstyle. The evidence fails to establish that the Petitioner informally complained to the Respondent about such alleged harassment prior to her termination from employment. In April 2009, the Petitioner participated in a work- related meeting, during which the Petitioner perceived that she was treated by another female employee in a demeaning manner. The Petitioner reported the other employee’s behavior in an email to supervisor Terry Walden. The other employee wrote a similar email complaining about the Petitioner’s behavior at the meeting, and, according to the Petitioner’s email, the Petitioner was aware of the other employee’s report. Although the Petitioner now asserts that she complained that the incident was discriminatory, the Petitioner’s email, which was written at the time of the incident, does not state or imply that the incident was related to some type of discriminatory conduct by the other employee, or that the altercation was related to anything other than assigned work responsibilities. In May 2014, the Petitioner and a white male co-worker engaged in an office confrontation about assigned work responsibilities. Both the Respondent and the other employee separately reported the incident to supervisors. The Respondent investigated the incident and interviewed other employees who observed, but were not involved in, the confrontation. As a result of the incident, the Petitioner received a written memo of counseling on June 16, 2014, from supervisor Greta Opela for “poor interpersonal skills.” The memo reported that the Petitioner “consistently performed well in her position from a technical standpoint” but that she “has had ongoing associate relations issues.” The memo stated that the Petitioner was unable to work appropriately with other employees and that “many associates have requested not to work with her because of their previous interactions with her.” The memo noted that the Petitioner’s behavior towards her co-workers had been referenced in previous performance evaluations, as well as in direct discussions between the Petitioner and her immediate managers. In relevant part, the memo further stated as follows: Of concern, when coached or provided constructive criticism, Marcella is very unreceptive and often becomes defensive and deflects blame to others. Given Marcella has had interpersonal conflicts with numerous individuals, Marcella needs to recognize her role in these conflicts, take ownership for her actions, and work to correct her behavior. * * * Marcella must treat her fellow associates with dignity and respect. Also Marcella must take ownership for her actions and work to improve upon her relationships with her peers. Should Marcella fail to improve upon her interpersonal skills, she will be issued additional counseling, removed from her position, or separated from Publix. The Petitioner’s written acknowledgement of her receipt of the memo indicated that she disagreed with the assessment. The Petitioner asserts that the Respondent committed an act of discrimination against her because the Respondent did not issue a similar memo to the other employee. The evidence fails to support the assertion. The evidence fails to establish that the Respondent had any reason to issue a similar memorandum to the other employee, or that the other employee had a documented history of exhibiting “poor interpersonal skills” that could warrant counseling. There is no evidence that the June 2014 memo was related in any manner to the Petitioner’s race, color, sex, age, or was retaliatory. Although the memo was placed in the Petitioner’s personnel file, the Respondent took no adverse employment action against the Petitioner as a result of the memo or the underlying incident. On June 23, 2014, the Petitioner’s house, which she owned with her husband, was partially destroyed in a fire. The Petitioner had been called to the scene after the fire commenced, and was present as the structure burned. The fire and subsequent events resulted in an investigation by the State Fire Marshall’s Office. On April 1, 2015, the Petitioner informed supervisor Opela that the Petitioner had to go to the Hillsborough County Sheriff’s Office (HCSO) and was unsure whether she would return to work on that day. Thereafter, the Petitioner left the workplace and traveled to the HCSO where she presented herself for arrest on a felony charge of making a “false and fraudulent insurance claim.” After the Petitioner left her place of employment, Ms. Opela accessed an internet resource and learned of the pending charge against the Petitioner. Ms. Opela reported the information to her own supervisor, Ms. Walden, and to Susan Brose, a manager in the Respondent’s human resources department. Ms. Brose reviewed the available internet information, and then arranged with the Petitioner to meet upon her return to the workplace. At the hearing, Ms. Brose testified that the Respondent requires complete honesty from its employees, and that, according to the Respondent’s policies, dishonest of any kind is unacceptable and can result in termination from employment. Ms. Brose testified that she restates the requirement at the commencement of every personnel disciplinary meeting, and did so at the beginning of her meeting with the Petitioner, after which she asked the Petitioner to explain the situation. The Petitioner responded by stating that there had been a fire at the house, that there had been no insurance on the house, that her husband had filed a claim, and that she had asked the insurance carrier not to pursue the claim. The Petitioner denied to Ms. Brose that she had been arrested at the HCSO. Ms. Brose also spoke with William Harrison, a detective with the Florida Department of Financial Services, Division of Insurance Fraud. Mr. Harrison prepared and executed the Summary of Offense and Probable Cause Statement (Probable Cause Statement), dated December 4, 2014, which formed the basis for the Petitioner’s arrest on April 1, 2015. According to the Probable Cause Statement: the Petitioner was aware at the time of the fire that the homeowner’s insurance on the house had lapsed for non-payment of the premium; the Petitioner was present at the scene of the fire and became aware that the policy could be reinstated during the “grace period” by payment of the premium due, as long as the house had suffered no damage during the uninsured period; the Petitioner was warned at the scene of the fire by an employee of the State Fire Marshall’s office that the reinstatement of the lapsed policy without disclosing the damage could constitute insurance fraud; and the Petitioner was overheard on the phone at the scene of the fire having the lapsed policy reinstated. Ms. Brose became aware that, when having the lapsed insurance policy reinstated, the Petitioner executed a “Statement of No Loss” form that provided in relevant part as follows: I CERTIFY THAT THERE HAVE BEEN NO LOSSES, ACCIDENTS OR CIRCUMSTANCES THAT MIGHT GIVE RISE TO A CLAIM UNDER THE INSURANCE POLICY WHOSE NUMBER IS SHOWN ABOVE. After completing her review of the circumstances, Ms. Brose concluded that the Petitioner had been dishonest during their meeting. Ms. Brose recommended to Ms. Walden that the Petitioner’s employment be terminated because the Petitioner worked in a high-security unit of the IT department where she had access to confidential financial information and systems, the Petitioner had been arrested for fraud, and the Petitioner was not honest when asked to explain the circumstances. On April 13, 2015, Ms. Walden terminated the Petitioner’s employment as a systems analyst for the reasons identified by Ms. Brose. The Petitioner presented no evidence that the Respondent’s termination of her employment was related to the Petitioner’s race, color, sex, age, or in retaliation for any complaint of discrimination.
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 Petitioner's complaint of discrimination. DONE AND ENTERED this 24th day of May, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2016.
The Issue Whether Petitioner was the subject of an unlawful employment practice by Respondent based on disability.
Findings Of Fact On February 7, 2011, an Order Granting Continuance and Rescheduling Hearing was entered setting the day, time, and location of the final hearing in this case. The Order was mailed to the last known, valid address of the Petitioner. The Order was not returned. On February 16, 2011, Petitioner filed a letter in this case indicating she was aware of the date, time, and location of the rescheduled final hearing. This cause came on for hearing as noticed. After waiting more than 15 minutes, Petitioner failed to appear to prosecute her claim. There has been no communication from the Petitioner indicating that she would not be attending the final hearing. Petitioner has the burden to establish by a preponderance of the evidence a violation of chapter 760. In this case, Petitioner failed to appear at the hearing after proper notice of the hearing was issued. Because Petitioner failed to appear, no evidence that Respondent violated chapter 760 was presented. Absent such evidence, Petitioner has not carried her burden of proof in this matter and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 17th day of May, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Harold R. Mardenborough, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Joyce Herring 501 South Main Street Havana, Florida 32333 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
