Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, 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 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
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
The Issue Whether Respondent, Coastal Properties (“Respondent” or “Coastal Properties”), discriminated against Petitioner, Harry (Hal) Hingson (“Petitioner”), based upon his age and race in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509.092, Florida Statutes.1/
Findings Of Fact Petitioner is a Caucasian male who was 60 years old in May of 2014, when Respondent allegedly discriminated against him by terminating his employment because of his age. Respondent is a management company for third-party owners of apartment communities, home owners associations, and condominium associations. Respondent employed Petitioner as a maintenance worker at the Twin Oaks apartment complex, a 242-unit apartment complex in Tallahassee, Florida. On May 6, 2014, after work, Petitioner and his supervisor, Clint Creel, were involved in a physical altercation off the job site, while fishing together on a boat. After the boat returned to the dock, Petitioner went inside his home. Rather than securing himself in his residence and calling law enforcement, Petitioner retrieved a gun from his residence, exited his residence, and fired the gun multiple times at Mr. Creel. Mr. Creel was struck in the back of the leg by a bullet and received medical treatment for his gunshot wound. Although he was shot, Mr. Creel returned to work the next day. Petitioner did not return to work the day after the incident as he was seeking medical treatment for the injuries he sustained during the physical altercation. Two days after the shooting, Respondent terminated Petitioner's employment. The decision to terminate Petitioner was made by the Respondent's Vice-President, Ray Allen, in consultation with the President, Dennis Fuller, after Mr. Allen spoke to both Mr. Creel, and Petitioner, about the shooting. Respondent presented the undisputed testimony of Mr. Allen and Mr. Ray that Petitioner's employment was terminated to protect the safety of the other employees and the residents at the Twin Oaks property. Mr. Creel expressed concern about his safety to Mr. Allen if he had to continue working with Petitioner. Mr. Allen and Mr. Fuller also were concerned about the safety of Mr. Creel, as well as the other employees and residents, if Petitioner and Mr. Creel continued to work together. Petitioner's Discrimination Complaint alleges that Petitioner was discriminated against based on race and age. In particular, Petitioner alleges that he was discriminated against because he was terminated after the off-the-job altercation, but his younger supervisor was not. The evidence adduced at the final hearing, however, failed to substantiate Petitioner's claim of discrimination. Other than testifying that he at one time, prior to the incident, was told that he was moving slow and at another time was told he was acting feeble, Petitioner did not present any direct or circumstantial evidence sufficient to reasonably suggest that Respondent discriminated against him in employment because of his age. Even if Petitioner had presented evidence sufficient to establish a prima facie case of age discrimination, Respondent provided a legitimate non- discriminatory reason for terminating Petitioner's employment. Petitioner admitted that Mr. Allen advised him that he was being terminated because he no longer wanted Petitioner and Mr. Creel to work together. Petitioner admitted Mr. Allen told him that he would have continued to employ Petitioner by moving him to another property, but there were no other openings. Respondent’s evidence demonstrated that the day after Petitioner was terminated, of its 59 employees, 25 were over the age of 40, 11 were over the age of 50, and one employee was older than Petitioner. The evidence also showed that 54 days after Petitioner was terminated, of Respondent’s 64 employees, 25 were over the age of 40, 10 were over the age of 50, and one employee was older than Petitioner. Petitioner failed to establish Respondent's reason for terminating his employment was a pretext for age discrimination. Petitioner's Discrimination Complaint further alleges he was discriminated against based on his race because another employee, a younger African-American, was arrested for DUI but was not terminated. Petitioner presented no evidence at the final hearing to substantiate that allegation, and Petitioner failed to present any evidence whatsoever to show that Respondent discriminated against Petitioner because of his race. In sum, Petitioner failed to show that Respondent discriminated against Petitioner by treating him differently, or terminating his employment because of his race or 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 dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2015.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black female. As such, she is a member of a protected class. Respondent is a rental and sales company. It rents and sells household furnishings and appliances to consumers. Around the end of June 2008, Petitioner was hired by Respondent as an account manager at its Crawfordville store. Petitioner’s scheduled start time was 7:30 a.m. Petitioner’s account manager duties included delivery of household furniture and appliances to customers, loading and unloading her truck, and collection of money (also known as collecting credits) from customers. Petitioner’s primary delivery route was the south side of Tallahassee, Florida. Her direct supervisor at the Crawfordville store was James Shaw. Mr. Shaw is a Black male. Petitioner alleged that in July 2008, James Shaw began to sexually harass Petitioner, inviting her to a hotel and on one occasion, locking her in the store, pushing her against some furniture, and groping her. Shortly after allegedly being groped, Petitioner reported the incident to Craig Carricino, Store Manager at RAC’s Tallahassee store, and Kevin Besette, the then District Manager. She also called RAC’s complaint hotline. Petitioner reported the incident to Mr. Carricino because she knew him from past dealings with him at the Tallahassee store and felt more comfortable reporting the incident to him. Petitioner made it clear that she did not want to return to the Crawfordville store and desired to be transferred to another location. On the day of Petitioner’s complaint, Brad Donovan, Coworker Relations Manager, initiated an investigation into Petitioner’s claim. Additionally, Mr. Donovan was aware of Petitioner’s desire to transfer to another store and immediately offered Petitioner the opportunity to transfer to RAC’s Tallahassee location. Petitioner readily accepted the offer and was transferred to the Tallahassee store where Mr. Carricino was the manager. After Petitioner’s transfer, Mr. Donovan proceeded with his investigation into her allegations of harassment. He interviewed Mr. Shaw, who denied Petitioner’s allegations. He interviewed Petitioner, who provided him with the name of a witness to Mr. Shaw’s sexual advances. Mr. Donovan interviewed this other witness. The witness reported that he had not seen any inappropriate conduct on the part of Mr. Shaw towards Petitioner. Petitioner never advised Mr. Donovan or any other person at RAC of any other witnesses to the alleged sexual misconduct of Mr. Shaw. In essence, Petitioner’s allegations could not be established because no independent evidence existed to support her allegations of sexual harassment. However, Respondent promptly addressed Petitioner’s allegations of sexual harassment. It investigated her claims and immediately transferred her to another store. Respondent also counseled Mr. Shaw about sexual harassment, but took no further action against him because of the absence of any independent evidence to support Petitioner’s allegations. Clearly, Respondent exercised reasonable care to prevent and promptly address Petitioner’s allegations of sexual harassment. Irrespective of whether Petitioner’s allegations against Mr. Shaw are true or believed, RAC did not engage in an unlawful employment action against Petitioner because it acted appropriately in addressing Petitioner’s allegations based on the investigation and conclusions it had reached about Petitioner’s allegations. RAC was not obligated to do more even if Petitioner disagreed with the company’s decision not to discipline Mr. Shaw. After her transfer, Petitioner felt she was harassed/retaliated against by Mr. Carricino when she was “written up” for being late to work. Petitioner identified Scott Taff, who is White, as the only non-minority employee who had allegedly been treated differently than her. She based her assertion on the fact that Scott Taff was not fired when he was late after being ‘written up’ for tardiness. Without going into the mostly hearsay evidence presented at hearing, Petitioner’s own testimony revealed that she was not fired for being late several more times after being ‘written up’ and warned for such tardiness. Additionally, there was no evidence presented regarding Mr. Taff’s disciplinary history or that he had a chronic tardiness problem. Given these facts, the evidence did not demonstrate that non-minority or male employees were treated differently than Petitioner. The evidence, also, did not demonstrate that Petitioner was subjected to any retaliation for her earlier sexual harassment complaint. The evidence did show that her employer wanted her to be at work on time and endeavored to stress its desire to her. Such action does not constitute an unlawful employment practice, especially when the employee has a tardiness problem. Petitioner also alleged she was harassed/retaliated against when she was told that she would have to lift 150-lb. sofas, and, if she complained about the duty, she would be fired. Petitioner did not testify about any specifics regarding this allegation. However, Petitioner’s job required that she be able to deliver a variety of products made available by Respondent, including sofas. Moving furniture, loading and unloading her truck, and picking up and delivering furniture was not specifically required of Petitioner, but was required of all similarly-situated account managers. By her own testimony, Petitioner described times when she had help in moving furniture and times when she did not have help in moving furniture. The store’s manager testified that Petitioner, like other employees, received help moving furniture when other employees including himself, were available to help and not performing their own similar job duties. There was no credible evidence that Petitioner was denied help moving furniture based on her race, sex or in retaliation for her earlier allegations of sexual harassment. Finally, Petitioner alleged that she was harassed/retaliated against when she was not allowed to “collect credits” from customers because she was sent on deliveries and later disciplined for not “running these credits.” However, all account managers were required to collect money from customers and make deliveries. Petitioner was not singled out in being required to collect money from customers and make deliveries. All account managers had to figure out how to perform both functions. Petitioner’s testimony regarding being prohibited from collecting money on Saturday was not established by the evidence. The evidence showed that, for a short time, account managers were instructed not to use the computer system on Saturday mornings to help them in collecting money from customers because of some issue related to the computer system. However, the policy later changed to allow account managers to use the computer system on Saturday mornings. Moreover, there was no evidence that Petitioner could not otherwise collect money from customers without the aid of Respondent’s computer system. The computer may have made the collection process easier because customer contact information was stored in the computer system; however, the lack of use of that system on Saturday mornings did not prevent Petitioner from collecting money from customers. Customer information was available to Petitioner during the rest of Respondent’s time at work. Petitioner, again without any necessary specifics, claims that Mr. Taff was allowed to collect money on Saturdays. No computer records were introduced into evidence and no evidence of the time period when Mr. Taff allegedly collected money on Saturdays was adduced at hearing. Respondent denied that Mr. Taff collected money when he was not supposed to. The evidence did not demonstrate that Mr. Taff or any other similarly-situated employee was treated differently than Petitioner. The evidence did demonstrate that Petitioner had the lowest collection rate at the Tallahassee store and was consistently below that store’s standard for the collection of money. The District manager, Carney Anderson, who is Black, testified that he had no trouble meeting company expectations for collecting money from customers when he was an account manager in a similar, but larger, area and saw no reason why Petitioner could not meet the expectations of the company in the area she was assigned in Tallahassee. Petitioner did not perform up to the Respondent’s standards for the collection of money from customers. Importantly, a former male employee who failed to adequately collect money from customers was similarly disciplined for failing to perform this important job duty. Because Petitioner failed to meet the standards of the Respondent for the collection of money from customers, Mr. Carricino informed Petitioner that she would be terminated for her inability to meet those standards. Mr. Carricino offered Petitioner the option of resigning and assured her that he would provide a favorable recommendation to her, if she did. Petitioner elected to resign and wrote a letter of resignation. The letter did not mention discriminatory or retaliatory treatment and read as follows: “Thank you for everything. I am grateful for the opportunity that you gave me to work at Rent-a-Center, but at this time, I am unable to perform my duties as a mother to my kids due to the overwhelming hours. I am giving my two weeks notice today 11/10/08 in hopes of returning one day in good standing.” Mr. Anderson, who worked at the Tallahassee store every Monday, spoke with Petitioner about the basis of her resignation. She did not mention any belief she had that she had been retaliated or discriminated against. During Petitioner’s final two weeks, Mr. Anderson noticed a serious decline in Petitioner’s attitude and a decline in her work performance. He was not surprised because he had seen other short-term employees have a similar decline. Therefore, on November 15, 2008, Mr. Anderson instructed Mr. Carricino to terminate Petitioner’s employment immediately and Petitioner was terminated that day. There was no evidence that Respondent’s reason for terminating Petitioner was false or a pretext to hide discriminatory or retaliatory behavior. Moreover, given the short time that Petitioner had remaining at RAC and the fact of her resignation; the evidence did not demonstrate that Petitioner suffered an adverse employment action when she was terminated early during her final two weeks with RAC. Given these facts and the lack of evidence to support Petitioners allegations, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 30th day of September, 2009, 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 30th day of September, 2009. COPIES FURNISHED: Massa Dionna Hill 1613 Quazar Road Tallahassee, Florida 32311 Andrew Trusevich, Esquire Rent A Center, Inc. 5501 Headquarters Drive Dallas, Texas 75024 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 October, 2004.
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 Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
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 Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 7th day of February, 2013.
The Issue The issue in the case is whether the termination of Petitioner's employment by Respondent constituted discrimination against Petitioner on the basis of gender.
Findings Of Fact Petitioner is a female, a member of a protected group under applicable law, and was at all times material to this case, employed by Respondent until the termination of employment that is the subject of this dispute. Respondent is an employer as the term is defined by relevant sections of the St. Petersburg Municipal Code and the applicable Pinellas County Ordinance. During the period of time relevant to this dispute, Sam Obinwa owned Respondent. During the period of Mr. Obinwa's ownership, Respondent was a business engaged in providing health care supplies, including pharmaceuticals to customers. Beginning in July 1996, Petitioner was employed as a courier by Respondent. Petitioner was primarily assigned to make deliveries of supplies to Respondent's customers. Respondent also employed a second courier, a male, during this period. At some point during Petitioner's employment, Mr. Obinwa hired an office manager, Kim Henderson. Ms. Henderson became Petitioner's supervisor. Ms. Henderson was responsible for the operation of the office, including receiving customer complaints and resolving employee disputes. Mr. Obinwa testified that he received information related to the office operations from Ms. Henderson and relied upon it in making the decision to terminate Petitioner's employment. According to Mr. Obinwa's testimony, he received complaints regarding Petitioner's job performance and behavior from both customers and Ms. Henderson. Mr. Obinwa testified that he discussed the complaints with Petitioner during her employment. On December 14, 2003, Mr. Obinwa met with Petitioner and explained that her employment was being terminated. As grounds for the termination, Mr. Obinwa, in a termination letter provided to Petitioner, cited complaints about her behavior from both customers and work associates. The complaints included lack of cooperation, abusiveness, failure to follow instructions or to adhere to the delivery schedule, and missed or late medication deliveries. Petitioner asserts that she was terminated on account of gender. There is no credible evidence, direct or indirect, that Respondent's termination of Petitioner's employment was on account of gender. At the time of Petitioner's termination, Respondent employed eight to nine persons, including six to seven females. The employee most similarly situated to Petitioner (the male courier) was not terminated; however, there is no evidence that there were complaints regarding his behavior from either customers or work associates. At the hearing, Petitioner asserted that the male courier generally received the same treatment as did she. The evidence establishes that Petitioner received an additional benefit that was not provided to the male courier. Petitioner was permitted to use a company delivery vehicle for occasional personal transportation. There is no evidence that the male courier was permitted to take the company vehicle for personal use. Petitioner testified that another male employee identified as Herman Jones was hostile towards her and towards other women working for Respondent. Petitioner claimed that Mr. Jones was somehow responsible for her termination. Mr. Jones was a pharmacy technician. Mr. Jones was responsible for imputing prescription information into the computer system and for preparing the medications according to the prescriptions. Prior to being delivered to the customers by the couriers, the medications were checked by a pharmacist. There is no credible evidence that Mr. Jones had any supervisory duties related to Petitioner. There was testimony suggesting that there were personality conflicts between Petitioner and Mr. Jones. There is no evidence that Mr. Jones was involved in Mr. Obinwa's decision to terminate Petitioner's employment, other than the general consideration Mr. Obinwa gave to the complaints from Petitioner's co-workers related to her behavior in the office. At the hearing, Petitioner presented supportive letters from five customers who were apparently pleased with Petitioner's performance. Petitioner made between 100-200 deliveries each week to Respondent's customers. Mr. Obinwa testified that some of the customers to whom Petitioner made deliveries were happy and that others were not. No evidence related to damages to Petitioner was presented during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's complaint be DISMISSED. DONE AND ENTERED this 1st day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2004. COPIES FURNISHED: Stephanie N. Rugg City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731-2842 Suzanne M. Mucklow, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Willie Mae Curry 2702 4th Street, South St. Petersburg, Florida 33705-3641 Donna J. Buchholz, Esquire D. J. Buchholz, P.A. 4320 El Prado Boulevard, 15 Tampa, Florida 33629
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner was employed for approximately five years with Respondent as a salesman. RF Group, LLC, is a limited liability company, doing business as Respondent, McGowan's Heating and Air Conditioning, and is a company engaged in the heating and air conditioning business. Petitioner was a successful salesman for four and one- half years with the company until a new salesman was hired. According to Petitioner, the new salesman was given most of the sales leads and Petitioner was cut out. Eventually, Petitioner's salary was reduced due to a decrease in his sales performance. He attributes his decrease in sales production to Respondent choosing the new salesman over him. Although he claimed age discrimination in his initial complaint, Petitioner offered no evidence or testimony that he was not given the sales leads due to his age and that the younger salesman received the leads because Respondent considered Petitioner too old to conduct his business. Petitioner resigned his position with Respondent because he was not making enough salary. After his resignation, Petitioner went to work with Total Air Care, but his employment was terminated due to company lay-offs in October 2010.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 11th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 11th day of August, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 G. Alan Howard, Esquire Milam, Howard, Nicandri, Dees & Gilliam, P.A. East Bay Street Jacksonville, Florida 32202 Luis G. Arias 3526 Laurel Leaf Drive Orange Park, Florida 32065 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
