The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent, St. Andrews Bay, is a licensed nursing home that provides in-patient care to its residents. Its facility is located in Panama City, Florida. In order to provide its service, Respondent employs a variety of racially diverse personnel, consisting of both permanent and contract employees. Towards that end, Respondent maintains a variety of employment discipline and transfer policies that are contained in the Employee Handbook for St. Andrews Bay. The April 2011 Employee Handbook, which was in effect in August 2011, set forth the policy regarding transfers, as follows, in relevant part: Employees who wish to be considered for a transfer or promotion to a vacant position may apply if the employee is of "Good Standing." In addition to being in "Good Standing," the employee must possess the following: The minimum qualifications for the position: Received no progressive disciplinary action within the past six months (emphasis added). * * * The Employees Handbook, also, provided for progressive discipline. Such discipline included, in ascending order, coaching, first/second written warnings, suspensions, and Performance Improvement Plans. Petitioner is a black male. As such, Petitioner is a protected person under chapter 760, Florida Statutes. In January 2006, Petitioner was employed by Respondent as a Dietary Aide. As an employee, Petitioner received a copy of, or had access to, Respondent's discipline and transfer policies. At some point, tardiness for work became a problem for Petitioner. Indeed, his supervisor considered him a competent employee with some tardiness issues and, on April 6, 2011, disciplined Petitioner with a "coaching" for being two hours late for work without notifying anyone that he would be late. Although the dates are unclear, the evidence showed that Mr. Munn, who is a white male, worked as a laborer for ManPower. Through a contract between ManPower and St. Andrews Bay, Mr. Munn was performing painting, maintenance, and any other work the Maintenance Director assigned, for approximately four to five weeks, beginning sometime in July 2011. Around August 3, 2011, a sign-up sheet was posted at St. Andrews Bay for the position of Maintenance Assistant. The sign-up sheet was posted to notify any current employees of the job opening and allow them to apply for the position by signing the posted sheet. Within less than six months of Petitioner being disciplined, Petitioner, along with two other current employees, indicated their interest in the Maintenance Assistant position by signing the sign-up sheet. The other two employees who expressed interest in the maintenance position did not testify at hearing and no findings are made regarding their qualifications or, more importantly, Respondent's knowledge regarding their qualifications. Per Respondent's policy, Petitioner did not have to complete an application for the maintenance position since he had two applications, one dated January 4, 2006, and one dated October 24, 2007, on file with the Respondent. Neither of these applications reflected that Petitioner had prior maintenance experience. One application reflects that Petitioner owned a restaurant known as "Daddy's Place." One application reflects that Petitioner was the cook at Daddy's Place. However, neither ownership nor cooking experience indicates maintenance experience and there was no evidence that Respondent knew that Petitioner worked other than as a cook in his restaurant or had any other maintenance experience from such ownership. Moreover, under Respondent's transfer policy, Petitioner was not qualified to sign up for the maintenance position since he had received disciplinary action within six months of this transfer opportunity. On the other hand, the evidence showed that Mr. Munn applied for the position of floor tech at St. Andrews Bay in December of 2010, but was not hired for that position. Unlike Petitioner, and in addition to Mr. Munn's current maintenance work experience at Respondent's facility, Mr. Munn's application reflected some experience in maintenance, albeit not extensive experience. However, like Petitioner, Mr. Munn's application for employment was already on file. Therefore, it was not necessary for Mr. Munn to fill out a second employment application for the position of Maintenance Assistant. Petitioner's policy regarding on-file applications is reasonable and was applied to both black and white applicants in this case. There was no competent evidence that demonstrated this policy was a pretext for discrimination. Petitioner was not interviewed for the position. However, the evidence did not show that anyone was formally interviewed for the maintenance position. On these facts, lack of formal interviews does not demonstrate discrimination by Respondent against Petitioner since Respondent was already familiar with the two applicants at issue in this case. On August 8, 2011, Wesley Munn was selected for the Maintenance Assistant position by the maintenance supervisor, Mr. Emmanuel. Although somewhat unclear, the evidence demonstrated that Mr. Munn's selection was approved by the then Administrator of St. Andrews Bay, Tunecia Sheffield, who is black. Neither of these two individuals testified at hearing. However, the evidence at the hearing did not demonstrate that Respondent discriminated against Petitioner when it hired Mr. Munn for the maintenance position. Conversely, the evidence at hearing demonstrated that Mr. Munn's hiring had a reasonable basis since Mr. Munn had some maintenance experience and was already performing the duties for which he was hired. There was no competent evidence that demonstrated Respondent's reasons for hiring Mr. Munn to be a pretext for discrimination. Therefore, given these facts, the Petition for Relief should be dismissed.
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 dismissing the Petition for Relief. DONE AND ENTERED this 31st day of August, 2012, 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 31st day of August, 2012. COPIES FURNISHED: Tiffany A. Minton, Esquire Preferred Care, Inc. 5500 West Plano Parkway Plano, Texas 75093 Jimmy L. McClain 1527 Grace Avenue, Apartment C Panama City, Florida 32405 Lacey Corona, Esquire Broad and Cassel Suite 205A 200 Grand Boulevard Destin, Florida 32550 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 mdaughton@broadandcassel.com Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
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 the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of March, 2008.
The Issue Whether this case is properly before the Division of Administrative Hearings.
Findings Of Fact On or about April 2, 2004, the Florida Commission on Human Relations (Commission) forwarded a packet of papers, as more fully described below, to the Division of Administrative Hearings (Division). At the request of the parties, a disputed- fact hearing was scheduled for June 30, 2004 through July 1, 2004. The Charge of Discrimination in this cause bears a signature date of April 23, 2002. It states that the most recent alleged discrimination occurred in December 2001, and alleges race, color, and religious discrimination and retaliation. The copy of the Charge sent to the Division in the Commission's referral packet bears a Commission date-stamp of December 2, 2002. However, Respondent has provided a copy of the Charge, showing that it was first filed with the Commission on November 19, 2002, and the parties are in agreement that November 19, 2002, was the date of actual filing of the Charge with the Commission. The Charge filed with the Commission was accompanied by a cover letter dated November 14, 2002, and a "confidential" affidavit also dated November 14, 2002. On December 6, 2002, Respondent received the Commission's Notice of Petitioner's Charge of Discrimination. Thereafter, Respondent submitted its position statement with attachments to the Commission. The parties subsequently engaged in settlement discussions but were unable to come to terms.1/ On November 20, 2003, the law office representing Petitioner notified the Commission that settlement was not possible and that Petitioner's attorney wanted to be advised of the Equal Employment Opportunity Commission (EEOC) case number assigned to the same allegations of discrimination by the EEOC, pursuant to the Commission's work-sharing agreement with that Federal agency. On January 21, 2004, Petitioner's attorney's law office again wrote to the Commission requesting the EEOC case number and stating, "[W]e may take our client's issues up in the judicial arena."2/ Petitioner filed with the Commission on February 10, 2004, an Election of Rights signed by her attorney on February 9, 2004, on which the following option had been checked: More than 180 days have elapsed since I filed my charge of discrimination. I wish to withdraw my charge and file a Petition for Relief to proceed with an administrative hearing as provided for under Florida Statutes Section 760.11(4)(b) and (8). On February 16, 2004, the Commission sent a letter to Petitioner's attorney confirming its receipt of the Election of Rights on February 10, 2004, and reciting the foregoing reason stated therein. The Commission attached to its letter a blank petition for relief with instructions that the petition should be completed and returned to the Commission within 20 days. Twenty days from the Commission's February 16, 2004, letter would have been March 8, 2004. By a letter dated March 16, 2004, Petitioner's attorney wrote the Commission advising that for purposes of the EEOC claim, "March 23, 2002," should be used as the last date of discrimination. March 23, 2002, is a date four months after the date alleged in the Charge of Discrimination which had been filed with the Commission. (See Finding of Fact No. 3.) Apparently, the Commission filed the EEOC complaint with that federal agency on March 18, 2004. By a March 18, 2004, form letter, the Commission advised Petitioner, via her attorney, that the EEOC claim had been filed and given a number. The Commission's form advises that Petitioner need do nothing with the EEOC until the Commission has made its final findings in the case before the Commission. The March 18, 2004, EEOC complaint is virtually identical in all respects to the Charge filed by Petitioner with the Commission on November 19, 2002, except for the date of alleged discrimination. (See Finding of Fact No. 9.) On March 29, 2004, Petitioner's attorney signed a second Election of Rights, checking the same reasons as were given in the February 10, 2004, Election of Rights. (See Finding of Fact No. 7.) The second Election of Rights was filed with the Commission on March 31, 2004. On April 1, 2004, the Commission sent a second letter to Petitioner via her attorney, confirming receipt of Petitioner's second Election of Rights dated March 29, 2004, and stating that it had been filed on March 30,[sic] 2004. This Commission letter again reiterated the option requested by the Petitioner. (See Finding of Fact Nos. 7 and 13.) The April 1, 2004, letter from the Commission attached a second blank petition for relief for Petitioner to complete, and further advised: The initial letter dated February 16, 2004 included the Petition for Relief to be filed with the Commission within 20 days of the dated letter. We have not received the Petition for Relief to date; therefore I am enclosing another Petition for Relief to be completed. Forward the original Petition for Relief to the Division of Administrative Hearings and mail a copy to the Division. The Election of Rights Form will be forwarded to the Division of Administrative Hearings for case assignment as requested. On April 1, 2004, the Commission filled out a Transmittal of Petition form, which it forwarded to the Division, attaching only the Commission's April 1, 2004, letter to Petitioner's attorney, a copy of the original Charge of Discrimination incorrectly date-stamped as filed with the Commission on December 2, 2003 (see Finding of Fact No. 3), and a copy of Petitioner's Election of Rights, dated March 29, 2004, which had been signed by her attorney. (See Finding of Fact No. 13.) Petitioner admits that at no time within 20 days of either the Commission's February 16, 2004, letter or the Commission's April 1, 2004 letter, did Petitioner file a Petition for Relief either with the Commission or the Division. Not until after Respondent had moved to dismiss before the Division on June 15, 2004, did Petitioner file a Petition for Relief. On June 24, 2004, that Petition for Relief was filed with the Division, without prior leave of an Administrative Law Judge of the Division. The Petition was not on a Commission form. As of June 25, 2004, the date of oral argument on the Motion to Dismiss and Response thereto, the free-form Petition for Relief had only been filed with the Division and had never been filed with the Commission. On the basis of the record before the Division, it appears that Petitioner has never filed with the Commission a Petition for Relief, also known as a request for administrative hearing. It is undisputed that no Petition for Relief or request for administrative hearing was filed by Petitioner with the Commission within 215 days of filing the Charge of Discrimination with the Commission, which would have been 180 days plus 35 days; nor within 35 days of February 16, 2004, the date of the Commission's first letter advising Petitioner to timely file a Petition for Relief with the Commission; or within 35 days of April 1, 2004, the date of the Commission's second letter advising Petitioner to timely file a Petition for Relief with the Commission.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss this case, which exists only by the Charge of Discrimination, and a late-filed petition before the Division of Administrative Hearings. DONE AND ENTERED this 29th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2004.
The Issue The issue is whether the claim of employment discrimination contained in the Petition for Relief must be dismissed due to Petitioner's execution of a release at the time of his termination from employment.
Findings Of Fact Effective August 15, 2011, Petitioner's employment with Respondent was terminated. Two days later, Petitioner signed and delivered the Release. In the Release, Respondent agreed to pay Petitioner "severance pay" of about $5,000, net several items, provided Petitioner did not exercise his right to revoke the agreement within the seven days following execution, as provided by the Release. Petitioner did not revoke the agreement, and Respondent discharged its obligations under the Release. In exchange, Petitioner agreed to release Respondent from any and all charges, complaints, claims, liabilities, obligations, promises, sums of money, agreements, controversies, damages, actions, suits, rights, demands, sanctions, costs . . ., losses, debts, and expenses of any nature whatsoever, existing on, or at any time prior to, the date hereof, in law, in equity or otherwise, which [Petitioner] . . . had or [has] by reason of any fact, matter, cause or thing whatsoever. This Release includes . . . a release of all claims or causes of action arising out of or related to [Petitioner]'s employment and/or separation from employment with [Respondent] and . . . claims or causes of action arising under any federal, state or local law, including . . . Title VII of the Civil Rights Act of 1964 " Even taken as true, the above-quoted statement is not, on its face, evidence of discrimination based on national origin because it does not reveal that the speaker acted on his hatred of Petitioner; it merely describes hatred, the national origin or religion of the speaker, and the national origin of Petitioner. However, for the purpose of ruling on Respondent's Motion to Relinquish Jurisdiction, it is assumed that a Jewish supervisor fired Petitioner on the ground of national origin. More importantly, perhaps, is the fact that, after concluding that his termination had constituted unlawful discrimination, Petitioner has not tendered back to Respondent the severance payment, nor has he offered to do so.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of April, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 12th day of April, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Albert B. Balzanti 4857 Northwest 93rd Avenue Fort Lauderdale, Florida 33351 Holly A. Dincman, Esquire Melissa F. Sale, Esquire Coppins, Monroe, Adkins, and Dincman, P.A. 1319 Thomaswood Drive Tallahassee, Florida 32308 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex/gender, race, religion or disability.
Findings Of Fact Respondent operates a chain of retail stores/service stations, some of which include a deli. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). Petitioner is an African-American female. She began working for Respondent sometime in 2006. In January 2008, Petitioner's job responsibilities included cleaning and stocking shelves during the night shift at Respondent's store located on Cervantes Street, Pensacola, Florida. The Cervantes store did not have a deli. Alvin Philyaw, a white male, was the manager at the Cervantes store. Bill Fuller, a white male, was the store's assistant manager. Robert Wensel, another white employee at the Cervantes store, took care of the trash. On or about January 2, 2008, Petitioner and Mr. Wensel were in the store’s cooler. Petitioner was unloading a shopping cart when Mr. Wensel, who was subject to panic attacks, fell towards Petitioner. Petitioner reached with one arm to catch Mr. Wensel. After the incident, Petitioner returned to work. On or about January 15, 2008, Petitioner told Mr. Fuller that she had injured her shoulder when Mr. Wensel fell on her. Mr. Fuller told Petitioner to discuss it with Mr. Philyaw. Petitioner then talked to Mr. Philyaw. He told Petitioner that, pursuant to store policy, she should have immediately reported the accident. After finding nothing on the video tape about the fall, Mr. Philyaw told Petitioner and Mr. Wensel to file written reports about the accident. The injury was eventually treated pursuant to Florida’s workers’ compensation law. Petitioner subsequently filed a formal workers' compensation grievance about her dissatisfaction with the medical care she received for her alleged shoulder injury. Petitioner claimed that the accident involving Mr. Wensel occurred as a result of a satanic spell cast on Petitioner by one of her co-workers. This claim was not established by the evidence in this case and was found not credible in Petitioner’s earlier action against Circle K. Petitioner did testify about her doctor’s evaluation and treatment of her arm/shoulder. However, even with this testimony, the evidence in this case did not establish that Petitioner suffered any significant impairment that would constitute a disability/handicap under Chapter 760, Florida Statute. Around January 18, 2008, Mr. Philyaw learned that the Cervantes store was losing employee hours. Mr. Philyaw asked Petitioner if she would like to transfer to the store on Bayfront Street, Pensacola, Florida, where she could get more hours, work in the deli, and keep her benefits. Petitioner agreed. Petitioner went to Respondent's main office to speak with Jackie Ridgeway. Petitioner requested the transfer to the full-time position in the Bayfront store's deli. At the Bayfront store, Petitioner worked in the deli with Amy Williams, a white female, and Channel Pritchett, a black female. Ms. Williams was the deli supervisor. Ms. Pritchett was the deli cook. Petitioner’s duties included cleaning and waiting on customers. Ms. Williams did not know about Petitioner's alleged shoulder injury. One day at the Bayfront store, a cooking pan fell and hit Petitioner in the face. Petitioner's glasses were broken when the pan fell. The incident was an accident and not the result of witchcraft or any malicious intent. Again, there was no evidence of any discrimination based on race, religion or disability. Petitioner and Ms. Pritchett also worked together in the deli at the store in Cantonment, Florida. Felicia Williamson, who is also African-American, was Petitioner's manager/supervisor. While at the Cantonment store, a black customer asked Petitioner if she was Muslim and would she marry a Muslim man. There was nothing in this conversation or the evidence that indicated Circle K was involved in this man’s inquiries. Likewise, there was nothing in this conversation or the evidence that demonstrated any discrimination by Circle K based on Petitioner’s race, religion or disability. After working at the Cantonment store, Petitioner was transferred to the deli at the store on Barrancas Street, Pensacola, Florida. One day around October 30, 2008, a piece of sandwich paper caught fire under the steam box. Petitioner reached in with tongs, picked up the paper, and put the fire out in the deli sink. Petitioner was slightly burned by the fire, but continued to work her shift. Petitioner’s burns eventually healed. Again, the evidence demonstrated that this incident was an accident. However, the evidence did not demonstrate that this incident resulted in any significant injury to Petitioner or that her injury constituted a disability/handicap under Chapter 760, Florida Statutes. At some point, Petitioner returned to the Cantonment store. Petitioner alleged that around November 6, 2008, Ms. Williamson fired Petitioner for moving too slowly. Ms. Williamson claims she did not terminate Petitioner, but that Petitioner walked out of the store and did not return. Petitioner admitted that Ms. Williamson was dissatisfied with Petitioner's work performance. However, there was no substantial evidence to determine whether Petitioner was terminated or whether she quit. Likewise, there was no substantial evidence to determine the reason for Petitioner separating from her employment. Petitioner attributed her termination to the fact that Ms. Williamson was mean and abusive. However, Petitioner also testified that Ms. Williamson was “mean and abusive” to everyone. This evidence is insufficient to demonstrate any discrimination on the part of Ms. Williamson or Circle K. Given these facts, the evidence did not demonstrate that Petitioner was physically handicapped/disabled or suffered an adverse employment action because of her race, religion or disability. For the same reasons, the evidence did not demonstrate that Petitioner was retaliated against based on her earlier action against Circle K. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 2nd day of September, 2010, in Tallahassee, Leon County, Florida. S 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 2nd day of September 2010. COPIES FURNISHED: Carolyn Johnson Post Office Box 4671 Pensacola, Florida 32507 Joyce Clemmons Circle K 25 West Cedar Street, Suite 100 Pensacola, Florida 32502 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 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are: (1) Whether Petitioner filed her charge of discrimination with the Florida Commission on Human Relations within 365 days after the alleged discriminatory act; and (2) Whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of her national origin, gender, or pregnancy.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Olivera is a Cuban-American female. The City hired her, effective March 8, 1993, to work as a secretary in the City Manager’s office. After one week, Olivera was promoted to the position of Office Manager, a more demanding job that entailed much greater responsibilities. The evidence regarding Olivera’s performance as Office Manager is in conflict. Her supervisors believed that Olivera was a marginal employee who failed to discharge her duties satisfactorily. The City has placed in evidence a number of contemporaneous memorandums and other documents that memorialize one or another of Olivera’s perceived performance deficiencies. In contrast, Olivera believed she was performing well, and that her supervisors’ complaints about her were, for the most part, false, exaggerated, or unfair — and worse, a pretext for unlawful discrimination. (Olivera admitted that she had had problems with tardiness during her first year of employment, but all agreed that Olivera had corrected this particular deficiency.) In short, Olivera perceived that she had been singled out for disproportionately harsh treatment and had been made the scapegoat when others failed to do their jobs. More ominously, Olivera accused the City Manager, R.J. Intindola, of constantly having made racist comments about Blacks and Cubans. She claimed that Mr. Intindola uttered racial slurs with such frequency that the workplace became hostile. Further, Olivera asserted that her complaints about Mr. Intindola’s behavior fell on deaf ears. As with the issues pertaining to Olivera’s job performance, the evidence regarding Mr. Intindola’s conduct is in conflict. Mr. Intindola himself denied having uttered the slurs that Olivera put on his lips, yet he admitted that “one time,” in Olivera’s presence, he had referred to another employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola claimed that everyone present knew that he was kidding and laughed at the repartee between him and Ms. Dominguez. No one who testified at hearing corroborated Olivera’s account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who has been employed with the City since May 1974, disclaimed having witnessed any discriminatory behavior in the workplace there, despite having been the subject of the one possibly derogatory comment that Mr. Intindola indisputably made. On or around April 24, 1995, Olivera was asked to resign her employment with the City to avoid being fired, which would be the consequence of her refusal. Faced with this choice, Olivera submitted a letter of resignation dated April 24, 1995. Thereafter, she received severance pay equal to two-months’ salary. Some time later, most likely during the first few weeks of March 1996, Olivera filed both a Charge Questionnaire and an Affidavit (collectively, the "Federal Forms") with the United States Equal Employment Opportunity Commission ("EEOC"). In the Federal Forms, Olivera alleged that the City had discriminated against her, primarily on the basis of her national origin. The EEOC notified Olivera by letter dated March 22, 1996, that, because her charge had not been timely filed under Title VII of the Civil Rights Act of 1964, the commission had forwarded the Federal Forms to the FCHR. On May 6, 1996, according to a date stamp on the face of the document, the FCHR received a Charge of Discrimination that appears to have been signed by Olivera on April 14, 1996. In this Charge of Discrimination, Olivera again alleged that the City had discriminated against her on the basis of national origin, in violation of her rights under the Florida Human Rights Act. Ultimate Factual Determinations The evidence in this record is not sufficient for the trier to ascertain whether, as a matter of objective historical fact, Olivera adequately performed on the job or not. Suffice it say that a preponderance of evidence fails to establish anything except that Olivera, on the one hand, and her supervisors, on the other, sincerely believed the opinions they expressed on this subject. In other words, Olivera honestly believes that she performed competently and was discriminated against. Her supervisors at the City, in turn, honestly believe that Olivera did not measure up to the Office Manager’s position and needed to be let go for that legitimate reason and no others. The upshot of this inconclusiveness is that Olivera has failed to demonstrate, by a preponderance of evidence, that the City violated her civil rights. Olivera’s conviction that she was the victim of unlawful discrimination, no matter how sincerely and firmly held, is not proof of the fact, at least not without more than the evidence in this record establishes. By the same token, the evidence does not exactly exonerate the City, in the sense of proving that its hands were completely clean or that it acted honorably in respect of Olivera. Rather, more likely than not, Mr. Intindola did on occasion make offhand comments about Cubans at which some persons could take offense. A preponderance of evidence fails to show, however, that he uttered these remarks with a discriminatory intent; that Olivera (or anyone else) suffered any material harm or humiliation as a result of hearing them; or that he did so with such frequency or in such fashion that his conduct could be called extreme. In sum, while it is fair to infer, and the trier so finds, that Mr. Intindola was not always as sensitive to the feelings of others as, in hindsight, he probably should have been, there is nevertheless insufficient evidence to support a finding that he acted willfully or that Mr. Intindola’s occasionally insensitive behavior was so consistently and frequently repeated as to become a condition of Olivera’s employment with the City. Likewise, the greater weight of evidence fails to establish that the environment in which Olivera worked was a hostile or abusive one. On this record the trier cannot say that, more likely than not, the workplace was permeated with discriminatory intimidation, insult, and ridicule. Further, the evidence does not establish that Olivera was treated differently than similarly situated employees who were neither Cuban- American, female, nor pregnant. In the final analysis, then, considering the totality of the circumstances, the evidence presented at hearing demonstrates no more than that the City terminated the employment of an at-will employee for performance-related reasons unrelated to her national origin, gender, or medical condition (pregnancy).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Olivera's Petition for Relief. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 12th day of June, 2001.
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner, a Caucasian male, was born on March 23, 1949. At the time of the alleged unlawful employment practice at issue in this case, Petitioner was 52-53 years old. Petitioner was employed by Respondent since 1973. He was terminated effective August 15, 2001. Respondent, at all times material to this case, is an employer within the meaning of the Florida Civil Rights Act. Respondent, at all relevant times, is in the business of providing telephone services to individuals and businesses in south Florida and elsewhere. At all relevant times, Petitioner was employed as a Service Technician. Service Technicians are responsible to install and repair telephone equipment in response to customer requests. At all relevant times, Respondent employs individuals as Service Technicians who are older than Petitioner. Many other individuals employed as Service Technicians are over the age of 40 at all times relevant to this case. Beginning in 1997, Respondent began to evaluate its Service Technicians according to a system called "Integrated Technicians Performance Plan [ITP].” The purpose of ITP was to improve customer service by evaluating Service Technicians and the individuals who manage them, on a regional basis, in accordance with standardized performance measures. Service Technicians whose ITP evaluations revealed deficiencies, including Petitioner, were provided assistance pursuant to individualized Technician Development Plans (TDP) and given a reasonable period of time to improve. From the time ITP was implemented in 1997, Petitioner was at all relevant times on a TDP because of deficiencies in his job performance. Petitioner's job performance was consistently deficient from 1997 throughout the remainder of his employment. From 1997 throughout the remainder of his employment Petitioner was provided assistance to help him improve his performance. Despite the assistance provided, Petitioner failed to improve his job performance to minimum levels required of all Service Technicians and required by his TDP. By August 2001, supervisors responsible for the training, evaluation and supervision of Service Technicians had determined that Petitioner did not maintain his job performance at the minimum levels required of Service Technicians and did not fulfill the requirements of his TDP. Accordingly, Respondent terminated Petitioner’s employment. Petitioner could have been terminated earlier than he was. In consideration of the fact that Petitioner had been a long-time employee of the company, he was given more time to improve his performance than company policy required. Petitioner presented no persuasive evidence that age played any role in Petitioner's termination. Petitioner did not prove that after he was terminated, a younger worker replaced him. Similarly, Petitioner presented no persuasive evidence that he is disabled within the meaning of the Florida Civil Rights Act, or that any disability played any role in his termination. Petitioner alleged his disabilities as “war wounds, tinnitus and hearing loss.” Petitioner never informed Respondent that he suffered from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Furthermore, Petitioner never informed Respondent that the disabilities alleged would in any way prevent him from performing his job as a Service Technician, or from satisfying the TDP developed to assist in ameliorating his performance deficiencies. Petitioner never informed Respondent that the alleged disabilities substantially impacted any major life function, or affected Petitioner’s ability to perform the essential functions of his Service Technician job. Respondent was not, at relevant times, on notice that Petitioner might suffer from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Respondent never perceived Petitioner to be disabled at times relevant to this case. During his employment as a Service Technician, Petitioner did not indicate a need for or make any request to Respondent for accommodations for any physical condition. Finally, Petitioner alleged that his termination was in retaliation for complaints he had filed in another forum. This allegation was not proved; rather, the evidence established that Petitioner never opposed any practice which is an unlawful employment practice under the Florida Civil Rights Act. In sum, the evidence established that Respondent discharged Petitioner solely on account of inadequate job performance as a Service Technician, and not on account of his age, disability, or in retaliation for complaints filed in another forum.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of October, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2005.
Findings Of Fact The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding. In the course of his employment with the Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances. The Petitioner maintains that he first became aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief. The Petitioner again felt that he had suffered disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms. Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent. This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415, Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley. In any event, because both allegations of child abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility. At the master control station, Detention Care Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so. Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline. Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petition of John W. Cohen, Jr. be dismissed in its entirety. DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300 Petitioner's Proposed Findings of Fact 1-4. Accepted, but not necessarily as probative of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-10. Accepted, but not as probative of material issues presented, standing alone. 11. Accepted, but not in itself probative of the material dispositive issues presented. 12-14. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Accepted, but not itself dispositive of material issues presented. 16-23. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself dispositive of material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-28. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as being immaterial. Accepted as to the first clause, but as to the second, rejected as not being entirely in accordance with the preponderant evidence of record. Rejected, as irrelevant. It was not demonstrated that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 D. Ola David Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301 Scott Leemis, Esq. HRS District 4 Legal Office P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about July 1, 1995, on the basis of her race (white), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995. Petitioner is a white female and a licensed CNA. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure. Vermette hired Petitioner as a CNA on April 18, 1995. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station. Petitioner told Donahue that Samuels had thrown her around the room. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is enough of this.” Donahue told Petitioner to leave the room and wait in the employee break room. Donahue reported this incident to her superior, Vermette. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome. During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Jayne E. Griffith, pro se 2018 Gairloch Street Orlando, Florida 32817 Deborah Gibson, Esquire Jackson Lewis 390 North Orange Avenue Suite 1285 Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
