The Issue Whether Petitioner, Marlowe D. Robinson ("Petitioner"), was unlawfully discriminated against by Respondent, Broward County School District ("BCSD"), his employer, based on his disability and in retaliation for complaining about discrimination, in violation of chapter 760 of the Florida Statutes, the Florida Civil Rights Act; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner worked for BCSD for approximately 20 years prior to the termination of his employment on May 8, 2018. Petitioner is a disabled veteran. At the time of his termination, Petitioner was employed as the Head Facility Serviceperson at BCSD's office in the Katherine C. Wright Building ("KCW"). On February 5, 2016, Richard Volpi began working at KCW as the Manager of Administrative Support and as Petitioner's immediate supervisor. During Mr. Volpi's third day on the job, Petitioner told him that he was not happy that Mr. Volpi was at KCW and that KCW was "his house." He also told Mr. Volpi that he did not work because he "delegated to his crew." On February 18, 2016, Petitioner filed two internal labor grievances. In the first, he asked to have his job title changed to "Building Operations Supervisor." In the second grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin, Chief of Staff, created a hostile and unclean work environment. Mr. Volpi processed the grievances by having a meeting with Petitioner on February 25, 2016. Finding no basis for the grievances in the collective bargaining agreement, Mr. Volpi denied them. On October 10, 2016, Mr. Volpi met with Petitioner to discuss a significant pattern of Petitioner coming in late, failing to notify BCSD when arriving late, staying after his scheduled shift to make up time without authorization, failing to call in as required for sick days, and failing to have pre- authorization for using accumulated leave. After the meeting, Mr. Volpi issued a written "Meeting Summary," which included counseling, based on Petitioner having come in late 24 days since August 1, 2016, and only notifying Mr. Volpi's assistant of the tardiness on three of those 24 days. The "Meeting Summary" was not considered discipline and stated, "If for any reason you need to change your shift hours to assist you in getting to work on time, please let me know." On October 19, 2016, Petitioner filed his third internal labor grievance after Mr. Volpi became his supervisor. The third labor grievance made numerous allegations against Mr. Volpi, including, but not limited to, sexual harassment, unspecified Family and Medical Leave Act ("FMLA") violations, and retaliation for filing prior grievances. On October 26, 2016, Petitioner submitted a request for intermittent leave pursuant to FMLA. The next day, Petitioner was notified that his FMLA leave request was incomplete, and was therefore denied. Petitioner was later granted intermittent FMLA leave with the agreement that he was to provide advance notification of his anticipated absences. On November 9, 2016, Petitioner was notified in writing to appear at Mr. Volpi's office on November 16, 2016, for a pre- disciplinary conference to discuss Petitioner's failure to adhere to the directive of October 10, 2016, to notify Mr. Volpi if he was going to be late, out for the day, or working outside his scheduled hours. The letter specified that Petitioner was late October 11, 13, and 17, 2016, without notifying Mr. Volpi, and that Petitioner was late and worked past his regular scheduled hours on October 21, 25, and November 7, 2016. The letter also specified that Petitioner "called out" (took time off) without notifying Mr. Volpi on October 31 and November 1, 2, 3, 4, and 8, 2016. In response, Petitioner filed a fourth grievance against Mr. Volpi alleging retaliation, bullying, and violations of the Americans with Disabilities Act ("ADA") and various policies of BCSD. On November 16, 2016, Mr. Volpi memorialized in writing that Petitioner failed to show up for the November 16, 2016, pre-disciplinary meeting. On November 21, 2016, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on November 30, 2016, for a pre-disciplinary meeting to replace the original meeting scheduled for November 16, 2016. Petitioner was not disciplined for not showing up to the November 16, 2016, meeting. The meeting on November 30, 2016, went forward as scheduled and Petitioner was issued a verbal reprimand on December 5, 2016, his first discipline from Mr. Volpi, for Petitioner's ignoring the prior directive to contact his supervisor if he was going to be late, absent, or wanted to work beyond his scheduled shift. He was again reminded that he had to make such notifications and have permission in advance of working hours other than his regular shift. On January 12, 2017, Petitioner was granted a reasonable accommodation pursuant to the ADA. The accommodation granted permitted Petitioner to report to work within one hour of his scheduled work time and leave within one hour of his scheduled end time ("flex time"). Additionally, Petitioner was required to notify his supervisor in advance of using flex time. Mr. Volpi assisted Petitioner in the accommodation process. Mr. Volpi provided Petitioner the accommodation paperwork and advocated for Petitioner to be granted an accommodation. On January 26, 2017, Petitioner again came in late without providing Mr. Volpi advance notice of intent to use his flex time. On January 27, 2017, Mr. Volpi sent an email to Petitioner reminding Petitioner that he was required to notify him if he is going to be late. This was not considered discipline. On March 21, 2017, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on March 27, 2017, for a pre-disciplinary meeting regarding ongoing excessive tardiness and failure to adhere to his work schedule. On March 23, 2017, Petitioner filed his fifth internal labor grievance, again alleging harassment (among other claims) against Mr. Volpi. On March 28, 2017, Petitioner filed his sixth internal labor grievance, again making harassment allegations against Mr. Volpi. On April 6, 2017, Petitioner was issued a Written Reprimand by Mr. Volpi for his nine days of tardiness in February and March and his failure to notify Mr. Volpi in advance. On April 7, 2017, Petitioner appealed the Written Reprimand. Petitioner also filed his seventh and eighth internal labor grievances alleging discrimination on the basis of disability and retaliation. Petitioner filed his Charge with the FCHR on April 13, 2017. Mr. Volpi conducted a first-step grievance hearing on April 27, 2017, and as a result of the discussion with Petitioner, who agreed to notify Mr. Volpi in advance of his inability to arrive at work as scheduled, the April 6, 2017, Written Reprimand was reduced to a verbal warning. The FCHR dismissed Petitioner's Charge with a No Reasonable Cause Determination on October 10, 2017. Between January 1 and February 15, 2018, Petitioner came to work late 14 days without providing prior notice, was absent without leave two days, and worked overtime one day without prior authorization. As a result, BCSD issued a three- day suspension on February 21, 2018. On February 22, 2018, Mr. Volpi met again with Petitioner to go over the expectations and provided a reminder memo not to work unauthorized hours without prior approval. On March 13, 2018, Mr. Volpi asked BCSD to issue a ten-day suspension to Petitioner for his ongoing failure to report to work at assigned times, unauthorized overtime, and absences without leave. In response, Petitioner filed yet another labor grievance. BCSD approved the ten-day suspension on April 10, 2018. Despite the ADA accommodation, increasing discipline, multiple counseling meetings and reminders, Petitioner continued his pattern of tardiness, unauthorized overtime, and absences. Accordingly, BCSD terminated Petitioner's employment on May 8, 2018. Petitioner's discipline and ultimate termination were not performance based, but rather, related solely to ongoing attendance issues.
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 FCHR Petition 201700954. DONE AND ENTERED this 6th day of December, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 6th day of December, 2018.
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact This case came before the Division of Administrative Hearings based upon the filing of a complaint alleging employment discrimination filed with the Florida Commission on Human Relations (The Commission). The Commission transmitted the complaint on March 27, 2008, for the assignment of an administrative law judge. The case was originally assigned to Administrative Law Judge Diane Cleavinger, and the matter was set for hearing to be held June 3, 2008. On May 21, 2008, Respondent filed a Motion to Continue based upon the unavailability of a key witness. The motion alleged that Petitioner had been contacted, but "prefers to state whether he has any objection to this motion in writing." On May 28, 2008, Judge Cleavinger granted the Motion to Continue and rescheduled the hearing for July 24, 2008. On June 3, 2008, Petitioner wrote a letter requesting to be heard on the request for continuance. Because his correspondence did not indicate that counsel for Respondent had been served, a Notice of Ex Parte Communication was filed. On June 12, 2008, a pre- hearing conference was conducted by telephone, and on July 14, 2008, Petitioner filed a Request for Recusal, which was granted July 16, 2008. The case was reassigned to the undersigned and on July 24, 2008, the case proceeded to hearing as previously scheduled. At the outset of the hearing, counsel for the Department made an appearance. However, Petitioner was not present in the hearing room. At the request of the administrative law judge, a representative for the Department checked the Division lobby to see whether Petitioner was present. A recess was taken to afford Petitioner an opportunity to appear. During the recess, the clerk's office was consulted to confirm that staff had received no contact from Petitioner indicating he was on his way to the hearing. After a twenty-five minute recess, the hearing was reconvened. Petitioner did not appear.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of unlawful discrimination. DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2008. COPIES FURNISHED: J. Yvette Pressley, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Elleton R. Collins, Jr. 4768 Woodville Highway, No. 412 Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Petitioner received notice of the August 19, 2005, administrative hearing, and if not, whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Petitioner is an African-American male. In the fall of 2004, Petitioner's cousin, Barry Walker, worked for Respondent as a cook. Mr. Walker recommended that Respondent hire Petitioner as a dishwasher. James Pigneri, Respondent's owner, interviewed Petitioner and decided to hire him as a dishwasher on a trial basis. Petitioner began washing dishes for Respondent in September 2004. In October 2004, Petitioner began a 90-day probationary period as Respondent's dishwasher. At that time, PMI Employee Leasing (PMI) became Petitioner's co-employer. PMI has a contractual relationship with Respondent. Through this contract, PMI assumes responsibility for Respondent's human resource issues, payroll needs, employee benefits, and workers’ compensation coverage. On October 10, 2004, Petitioner signed an acknowledgement that he had received a copy of PMI's employee handbook, which included PMI's policies on discrimination, harassment, or other civil rights violations. The handbook states that employees must immediately notify PMI for certain workplace claims, including but not limited to, claims involving release from work, labor relation problems, and discrimination. The handbook requires employees to inform PMI within 48 hours if employment ceases for any reason. PMI's discrimination and harassment policies provide employees with a toll-free telephone number. When an employee makes a complaint or files a grievance, PMI performs an investigation and takes any corrective action that is required. The cook-line in Respondent's kitchen consist of work stations for all sauté and grill cooks. The cook-line runs parallel to a row of glass windows between the kitchen and the dining room and around the corner between the kitchen and the outside deck. Customers in the dining room and on the deck can see all of the cooks preparing food at the work stations along the cook-line. On the evening of December 18, 2004, Respondent's business was crowded with customers in the dining room and on the deck. On December 18, 2004, Petitioner was working in Respondent's kitchen. Sometime during the dinner shift, Petitioner was standing on the cook-line near the windows, talking to a cook named Bob. Petitioner was discussing a scar on his body. During the discussion, Petitioner raised his shirt, exposing his chest, arm, and armpit. The cook named Bob told Petitioner to put his shirt down. Erin Pigneri, a white male, is the son of Respondent's owner, James Pignari. As one of Respondent's certified food managers, Erin Pigneri must be vigilant about compliance with health code regulations when he works as Respondent's shift manager. Erin Pigneri has authority to recommend that employees be fired, but his father, James Pigneri, makes the final employment decision. On December 18, 2004, Erin Pigneri, was working as Respondent's manager and was in charge of the restaurant because his father was not working that night. When Erin Pigneri saw Petitioner with his shirt raised up, he yelled out for Petitioner put his shirt back on and to get off the cook-line. Erin Pigneri was alarmed to see Petitioner with his shirt off on the cook-line because customers could see Petitioner and because Petitioner's action violated the health code. Petitioner's reaction was immediately insubordinate. Petitioner told Erin Pigneri that he could not speak to Petitioner in that tone of voice. Erin Pigneri had to tell Petitioner several times to put his shirt on, explaining that Petitioner was committing a major health-code violation. When Petitioner walked up to Erin Pigneri, the two men began to confront each other using profanity but no racial slurs. Erin Pigneri finally told Petitioner that, "I'm a 35- year-old man and no 19-year-old punk is going to talk to me in that manner and if you don't like it, you can leave." Erin Pigneri did not use a racial slur or tell Petitioner to "paint yourself white." After the confrontation, Erin Pigneri left the kitchen. Petitioner went back to work, completing his shift without further incident. Petitioner did not have further conversation with Erin Pigneri on the evening of December 18, 2004. Erin Pigneri did not discuss Petitioner or the shirt incident with any of the waiters or any other staff members that night. On Monday evening, December 20, 2004, Erin Pigneri was in the restaurant when Petitioner and his cousin, Mr. Walker, came to work. Petitioner was dressed in nicer clothes than he usually wore to work. Mr. Walker approached Erin and James Pigneri, telling them that they needed to have a meeting. Erin and James Pigneri followed Petitioner and Mr. Walker into the kitchen. The conversation began with Mr. Walker complaining that he understood some racist things were going on at the restaurant. Mr. Walker wanted talk about Erin Pigneri's alleged use of the "N" word. Erin Pigneri did not understand Mr. Walker's concern because Mr. Walker had been at work on the cook-line during the December 18, 2004, shirt incident. According to Petitioner's testimony at the hearing, Mr. Walker had talked to a waiter over the weekend. The waiter was Mr. Walker's girlfriend. Petitioner testified that the waiter/girlfriend told Mr. Walker that she heard Erin Pigneri use the "N" word in reference to Petitioner after Erin Pigneri left the kitchen after the shirt incident on December 18, 2004. Petitioner testified that neither he nor Mr. Walker had first- hand knowledge of Erin Pigneri's alleged use the "N" word in the dining room. Neither Mr. Walker nor the waiter provided testimony at the hearing. Accordingly, this hearsay evidence is not competent evidence that Erin Pigneri used a racial slur in the dining room after the "shirt incident." During the meeting on December 20, 2004, Erin Pigneri explained to Petitioner and Mr. Walker that the incident on December 18, 2004, involved Petitioner's insubordination and not racism. Mr. Walker wanted to know why Erin Pigneri had not fired Petitioner on Saturday night if he had been insubordinate. Erin Pigneri told Mr. Walker that he would have fired Petitioner but he did not want Respondent to lose Mr. Walker as an employee. Apparently, it is relatively easy to replace a dishwasher but not easy to replace a cook like Mr. Walker. Erin Pigneri asked Mr. Walker and another African- American who worked in the kitchen whether they had ever heard him make derogatory racial slurs. There is no persuasive evidence that Erin Pigneri ever made such comments even though Petitioner occasionally, and in a joking manner, called Erin Pigneri slang names like Cracker, Dago, and Guinea. Petitioner was present when Mr. Walker and Erin Pigneri discussed the alleged racial slurs. Petitioner's only contribution to the conversation was to repeatedly ask whether he was fired. Erin Pigneri never told Petitioner he was fired. After hearing Mr. Walker's concern and Erin Pigneri's explanation, James Pigneri specifically told Petitioner that he was not fired. James Pigneri told Petitioner that he needed to talk to Erin Pigneri and that they needed to work things out, man-to-man. After the meeting, Mr. Walker began his work for the evening shift on December 20, 2004. Petitioner walked around talking on his cell phone, telling his mother that he had been fired and she needed to pick him up. James Pigneri told Petitioner again that he was not fired, that Petitioner should go talk to Erin Pigneri, and that Erin Pigneri was waiting to talk to Petitioner. Erin Pigneri waited in his office for Petitioner to come in to see him. Petitioner never took advantage of that opportunity. During the hearing, Petitioner testified that James Pigneri made an alleged racial slur in reference to Petitioner at some unidentified point in time. According to Petitioner, he learned about the alleged racial slur second-hand from a cook named Bob. Bob did not testify at the hearing; therefore, there is no competent evidence that James Pigneri ever made a racial slur in reference to Petitioner or any other employee. Contrary to PMI's reporting procedures, Petitioner never called or informed PMI that he had been harassed, discriminated against, fired, terminated, or ceased working for Respondent for any reason. On December 22, 2004, PMI correctly concluded that Petitioner had voluntarily terminated or abandoned his employment. When Petitioner filed his Employment Complaint of Discrimination on January 11, 2005, Petitioner listed his address as 6526 Lance Street, Panama City, Florida, which is his mother's residence. On April 18, 2005, FCHR sent the Determination: No Cause to Petitioner at 6501 Pridgen Street, Panama City, Florida, which is the address of one of Petitioner's friends. When Petitioner filed his Petition for Relief on May 25, 2005, Petitioner listed his address the same as his mother's home. FCHR transmitted the petition to the Division of Administrative Hearings, indicating that Petitioner's address of record was the same as his friend's home. Therefore, the June 9, 2005, Notice of Hearing, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing were sent to Petitioner at his friend's address. During the hearing, Petitioner admitted that between January 2005 and August 2005, he lived back and forth between his mother's and his friend's residences. When he lived with his friend, Petitioner did not check his mail at his mother's home every day. However, Petitioner admitted that he received the June 9, 2005, Notice of Hearing, scheduling the hearing for July 18, 2005, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing for August 19, 2005. Petitioner testified that he knew the first hearing was rescheduled to take place on August 19, 2005. According to Petitioner, he misplaced the "papers" identifying the location of the hearing at the Office of the Judges of Compensation Claims in Panama City, Florida. Petitioner asserts that he went to the county courthouse on August 19, 2005, based on his erroneous belief that the hearing was to take place at that location. After determining that there was no administrative hearing scheduled at the county courthouse on August 19, 2005, Petitioner did not attempt to call FCHR or the Division of Administrative Hearings. On December 1, 2005, the undersigned sent Petitioner a Notice of Hearing, scheduling the hearing after remand for January 25, 2005. The December 1, 2005, Notice of Hearing was sent to Petitioner at his mother's and his friend's addresses. The copy of the notice sent to his friend's home was returned as undeliverable. During the hearing on January 25, 2005, Petitioner testified that he used one of the earlier notices (dated June 9, 2005, and/or July 12, 2005) to locate the hearing site for that day. This was necessary because Petitioner had misplaced the December 1, 2005, Notice of Hearing. All three notices have listed the hearing site as the Office of the Judges of Compensation Claims, 2401 State Avenue, Panama City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 Marlow Williams 6526 Lance Street Panama City, Florida 32404
The Issue The issue is whether Respondent, Higbee Company, d/b/a Dillard’s (“Dillard’s”), discriminated against Petitioner based upon his national origin or disability, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Dillard’s is an employer as that term is defined in section 760.02(7). Dillard’s is a department store chain. Petitioner, a Mexican male, was hired as a sales associate in the men’s department of Dillard’s store at Tallahassee’s Governor’s Square Mall on May 13, 2014. Petitioner’s job was to sell men’s fragrances directly to customers at the store. Allen Gustason was manager of the Dillard’s store at Governor’s Square Mall during the time Petitioner was employed there. Dee Thomas was the assistant store manager. Mark Kronenberger, who testified at the final hearing, was the men’s department sales manager and was Petitioner’s direct supervisor during the entire time that Petitioner worked at Dillard’s. Petitioner started at a salary of $12.00 per hour as a sales associate. His job performance and pay increases were assessed primarily on the basis of sales. On January 6, 2015, Petitioner received a raise to $12.60 per hour. On April 14, 2015, Petitioner was promoted to the position of fragrance specialist and received a raise to $14.50 per hour. Petitioner’s promotion did not change his basic duties, i.e., direct sales to customers. Petitioner’s employment at Dillard’s ended on November 28, 2015. Dillard’s did not dispute Petitioner’s testimony that he was a good and effective salesperson. Petitioner developed a regular clientele of Spanish-speaking customers who liked his ability to communicate with them in their native language. At the time of his hiring, Petitioner received, read, and agreed to abide by Dillard’s Associate Work Rules and General Policies, which among other things forbade insubordination by sales associates. “Insubordination” was defined to include failure to follow lawful instructions from a supervisor and engaging in contemptuous or taunting conduct that undermines the authority of management. As noted in the Preliminary Statement above, Petitioner claims that he is a Mexican male with a disability. The claimed disability is the human immunodeficiency virus (“HIV”). Dillard’s did not dispute that Petitioner has HIV. Petitioner claims that he was harassed by fellow employees because of his Mexican national origin. Petitioner claims that he complained to his supervisors, Mr. Kronenberger and Mr. Gustason, about the harassment. Petitioner claims that no effective action was taken to curb the harassment. Petitioner described a pervasive sense of discrimination at Dillard’s of which he became conscious only after about a year of working there. He testified that he is from California and had no real concept of being discriminated against because of his Mexican heritage. It took some time for him to realize and acknowledge to himself that it was happening. However, Petitioner was unable to describe many specific instances of discriminatory behavior by fellow employees. People were “mean,” or “picked on me,” or “didn’t like me,” but few of Petitioner’s complaints pointed toward racial discrimination as opposed to personal dislike. He complained that co-workers planned parties and get-togethers away from work but never asked him along, even for Mr. Kronenberger’s birthday party, but could only speculate as to the reason for his exclusion. Petitioner testified that he was an aggressive and successful salesperson. While its salespeople are assigned to specific departments, Dillard’s allows them to cross-sell in other departments. Several of the incidents described by Petitioner began when he took customers to other departments to sell them something. The undersigned infers that at least some of the bad feelings toward Petitioner were due to his perceived “poaching” of sales from other sections of the store. Petitioner testified that an employee named Carol would yell at him, apparently without provocation, so consistently that he went out of his way to avoid crossing her path. Petitioner stated that one day Carol screamed that he was good-for-nothing and was a “damn Mexican,” in front of customers and co-workers. Petitioner testified that he had no idea why she did this because he had done nothing to provoke her. He walked away, covering his ears from her abuse. Petitioner testified that he went upstairs and spoke to Mr. Gustason about the incident but that nothing was done. Petitioner stated that he returned to the sales floor. Other employees told him that Carol had worked for Dillard’s for many years and was a friend of Mr. Gustason and that he should not expect anything to be done about her behavior. Petitioner testified that an employee named Eric, who worked in the men’s department, made fun of his accent, particularly Petitioner’s difficulty in pronouncing “Saturday.” Petitioner testified that another fellow employee, a white woman named Amber who also worked in fragrance, was constantly rude and mean to him. In front of customers, Amber would say that she did not know why Petitioner was there, that he was only good for cleaning the counters. Petitioner repeatedly complained to Mr. Kronenberger about Amber. Mr. Kronenberger told him to continue doing a good job and not to focus on Amber. Petitioner stated that Mr. Kronenberger directed Amber to stay away from Petitioner’s counter, but she ignored the order and continued to harass him. Petitioner stated that matters came to a head when he was helping some female customers and went to Amber’s counter one day. He reached behind her to get the fragrance the customers wanted and Amber struck him with her elbow. The customers were aghast and complained to Dillard’s management despite Petitioner’s entreaties that they let the matter drop. Petitioner and Amber were called to the office to meet with Mr. Kronenberger and Yami Yao, the manager of women’s cosmetics. Amber denied everything. The supervisors told Petitioner and Amber to get along. They told Amber to stay away from Petitioner’s counter. Petitioner testified that Amber ignored the instruction and continued to harass him. Petitioner testified that on another day he was approached by a customer who wanted to pay Petitioner for a pair of shoes. Petitioner testified that he asked Mr. Kronenberger about it, because he did not want to steal a sale or anger anyone. Mr. Kronenberger told him that he was there to sell and that cross-selling was fine. As Petitioner was completing the sale, an older white man working in the shoe department threw a shoe at Petitioner and said, “You damn Mexican, I’m going to raise hell against you.” Petitioner testified about an altercation with Risa Autrey, a fragrance model who worked in Dillard’s and who Petitioner stated was another longtime friend of Mr. Gustason. One day, Ms. Autrey approached Petitioner--again, with zero provocation, according to Petitioner--and began berating him, saying that she had no idea why Dillard’s kept Petitioner around. This occurred in front of co-workers and customers. The customers went upstairs and complained to Mr. Gustason, who followed up by admonishing Petitioner to stop telling people to complain to him because nothing was going to come of it. Petitioner testified that a day or so after the incident with Ms. Autrey, he met with Mr. Gustason and Mr. Thomas.4/ During the course of this meeting, Petitioner disclosed his HIV status. Petitioner testified that Mr. Gustason’s attitude towards him changed immediately, and that Mr. Gustason had him fired two weeks later on a pretextual charge of stealing and insubordination. Petitioner testified that he got sick a few days before Black Friday, which in 2015 was on November 27. When he returned to work on November 25, he attempted to give Mr. Gustason a doctor’s note that would have entitled Petitioner to paid leave, but Mr. Gustason would not talk to him. Petitioner worked a long shift on Black Friday. On Saturday, November 28, 2015, he was called to Mr. Thomas’s office about an altercation he had on November 25 with Ms. Yao, the woman’s cosmetics manager. Mr. Kronenberger was also in the office. Petitioner testified that Mr. Thomas accused him of stealing, as well as insubordination to Ms. Yao, and fired him. Two mall security officers, the Dillard’s security officer, and Mr. Kronenberger escorted Petitioner out of the store. Petitioner testified that he was given no paperwork to memorialize his firing or the reasons therefor. Mr. Kronenberger testified at the final hearing. He testified that Petitioner constantly complained about someone not liking him or picking on him. Petitioner never gave him specifics as to what happened. Mr. Kronenberger stated that Petitioner never complained about racial slurs or that any of his alleged mistreatment had a discriminatory element. It was always, “This person doesn’t like me.” Petitioner had issues with tardiness and absenteeism throughout his employment with Dillard’s. Mr. Kronenberger testified that there would be days when Petitioner simply would not show up for work, or would send a text message to Mr. Kronenberger saying that he had things to do or someone he had to meet. Employment records submitted by Dillard’s supported the contention that Petitioner was frequently late for, or absent from, work. Mr. Kronenberger testified that Petitioner was erratic in his communications. Petitioner would send a text message saying he could not come in. Then he would send a text telling Mr. Kronenberger how happy he was to have the job. Mr. Kronenberger recalled once receiving a text from Petitioner at midnight that read, “I know I’ve been bad.” In November 2015, Petitioner had six unexcused absences, including four consecutive days from November 21 through 24. Mr. Kronenberger testified that Petitioner finally admitted that he needed to cut his hours in order to qualify for some form of public assistance. Mr. Gustason told Petitioner that something could be worked out to cut his hours, but that just not showing up for work was unfair to Mr. Kronenberger and the other employees. Mr. Kronenberger testified that Dillard’s would normally terminate an employee with six unexcused absences in one month under the heading of job abandonment. He stated that Mr. Gustason bent over backward to work with Petitioner and keep him on the job. When Petitioner was absent, Mr. Gustason would leave messages for him, asking him to call and let him know what was going on. During the string of November absences, Mr. Kronenberger phoned Petitioner, who said that he was afraid to come into work for fear that Mr. Gustason would fire him. Mr. Kronenberger assured Petitioner that Mr. Gustason had no such intent, but that in any event no one would have to fire him because he had not been to work in a week. Petitioner was effectively “firing himself” by abandoning his position. Petitioner showed up for work on November 25, 2015, at 4:50 p.m. He had been scheduled to come in at 9:45 a.m. Mr. Kronenberger testified that he was not present for Petitioner’s altercation with Ms. Yao, but that Ms. Yao reported she had attempted to counsel Petitioner about gifts with purchases. The promotional gifts were to be given away only with the purchase of certain items, but Petitioner was apparently disregarding that restriction and giving the gifts with non-qualifying purchases. Ms. Yao told Mr. Kronenberger that Petitioner quickly escalated the counseling into a shouting match in front of customers and co-workers. He yelled, “You’re not going to talk to me that way.” Ms. Yao told Petitioner that she worked in another department and did not have to deal with his antics. She told him that she was going to report the matter to Mr. Kronenberger and Mr. Thomas.5/ Mr. Kronenberger testified that his conversation with Ms. Yao was brief because there was no need to give many particulars. He was used to getting reports of employee run-ins with Petitioner and did not need much explanation to get the gist of what had happened. Mr. Kronenberger decided not to raise the issue with Petitioner on Black Friday, the busiest day of the year at the store. On the next day, November 28, Petitioner was called into the office to meet with Mr. Kronenberger and Mr. Thomas. Mr. Kronenberger testified that this meeting was not just about the incident with Ms. Yao but also Petitioner’s absences. In Mr. Kronenberger’s words, “[I]t was to follow up with the incident with Yami, and it was to follow up with, ‘Hey, you’ve just missed a week, you’ve been back a day, and you’re having this blow-up with a manager on the floor.’ Like, ‘What’s going on?’” Mr. Kronenberger testified that neither he nor Mr. Thomas went into this meeting with any intention of terminating Petitioner’s employment. However, two minutes into the conversation, Petitioner was on his feet, pointing fingers, and shouting that he knew what they were trying to do and he was not going to let them do it. He was quitting. Petitioner walked out of the office. Mr. Thomas asked Mr. Kronenberger to walk Petitioner out of the store so that there would be no incidents on the floor with the other employees. Mr. Kronenberger accompanied Petitioner to the fragrance area, where Petitioner retrieved some personal items, then walked him to the door. They shook hands and Petitioner left the store. Mr. Kronenberger was firm in his testimony that no security personnel were involved in removing Petitioner from the store. Petitioner was not accused of stealing. His parting with Mr. Kronenberger was as cordial as it could have been under the circumstances.6/ After Petitioner left his office, Mr. Thomas prepared a “Separation Data Form” confirming Petitioner’s dismissal for “violation of company work rules.” The specific ground stated for Petitioner’s dismissal was violation of the Associate Work Rule forbidding insubordination. Mr. Kronenberger testified that in his mind the “insubordination” included not just the scene with Ms. Yao, but the explosion Petitioner had in the meeting with Mr. Thomas. At the time of Petitioner’s dismissal, Mr. Kronenberger was unaware of Petitioner’s HIV status. Mr. Kronenberger credibly testified that Petitioner’s HIV status had nothing to do with his dismissal from employment at Dillard’s. Mr. Gustason, who apparently was aware of Petitioner’s HIV status, was not at work on November 28, 2015, and was not involved in the events leading to Petitioner’s dismissal. Mr. Thomas, the assistant store manager, made the decision to treat Petitioner’s situation as a dismissal for cause.7/ Mr. Kronenberger’s testimony is credited regarding the circumstances of Petitioner’s dismissal and as to the general tenor of Petitioner’s employment at Dillard’s. Petitioner was constantly in the middle of conflicts, but never alleged until after his termination that these conflicts were due to his national origin or disability. Petitioner’s demeanor at the hearing was extremely emotional. He cried frequently and seemed baffled that Mr. Kronenberger was disputing his testimony. The undersigned finds that Petitioner’s version of events was genuine in the sense that it conveyed Petitioner’s subjective experience of his employment as he recollected it. However, the undersigned must also find that Petitioner’s subjective experience did not conform to objective reality. However, Petitioner internalized the experiences, it is not plausible that Dillard’s employees were yelling at Petitioner without provocation, hitting him, throwing shoes at him, and calling him a “damn Mexican” in front of customers. It is not plausible that Petitioner’s superiors would ignore such flagrant discriminatory behavior when it was brought to their attention. Petitioner’s feelings about the motives of his co-workers and superiors cannot substitute for tangible evidence of unlawful discrimination. Petitioner offered the testimony of two Dillard’s customers, neither of whom saw behavior from Petitioner’s co- workers that could be attributed to anything beyond personal dislike or sales poaching. Santiago Garcia testified that he noted other Dillard’s employees rolling their eyes at Petitioner, but he thought the reason might be that Petitioner talked too loud. Mr. Garcia also saw “bad looks” from other employees and believed that the atmosphere among Dillard’s employees was “tense,” but did not offer a reason for the tension. Claudia Pimentel testified, through a Spanish language interpreter, that she always went directly to Petitioner because she speaks only Spanish and Petitioner was able to help her. Ms. Pimentel noted that a female Dillard’s employee got mad at Petitioner because he sold Ms. Pimentel a cream from her counter. During the years 2015 and 2016, the Dillard’s store in Governor’s Square Mall terminated two other sales associates for insubordination. Neither of these sales associates was Mexican. One was a black female and the other was a black male. Neither of these sales associates had a known disability at the time of termination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reason given by Dillard’s for his termination. Petitioner offered no credible evidence that Dillard’s stated reason for his termination was a pretext for discrimination based on Petitioner’s national origin or disability. Petitioner offered no credible evidence that Dillard’s discriminated against him because of his national origin or his disability in violation of section 760.10.
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 Higbee Company, d/b/a Dillard’s, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of October, 2017, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October 2017.
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
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 Petition for Relief with prejudice. DONE AND ENTERED this 26th day of December, 2000, 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 (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 December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues in this case are whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (''FCHR''), and, if so, what relief should be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner began working for Respondent as a part-time Self-Checkout Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per hour. After three months of employment, Petitioner’s pay was increased to $10.00 per hour in May of 2017. Subsequently, Petitioner received pay increases raising her hourly rate to $11.00, and then $11.50. In April of 2018, Petitioner was promoted to the full-time position of Customer Service Manager (''CSM''). Along with the promotion, Petitioner also received a raise, bringing her rate of pay to $13.65 per hour. In April of 2019, Respondent gave Petitioner another raise, resulting in hourly pay of $13.90. Respondent maintained a Statement of Ethics, of which Petitioner was aware. The Statement of Ethics explained that Respondent’s overall operations were guided by four core Beliefs, which were: Respect for the Individual; Service to our Customers; Striving for Excellence; and Act with Integrity. Based on what she heard from her coworkers, Petitioner believed that she was entitled to a market-adjustment pay increase in April of 2019. She sought information about the pay increase from her store manager and others. Petitioner reported her belief that she was entitled to a pay increase, which she had not received, to Respondent’s Associate Relations Department (''Department''). After what was described as a thorough review of Petitioner’s concerns, the Department closed the matter. Petitioner testified that a white male named Chance was making more money than she, based on conversations between Petitioner and Chance. Chance worked as a Money Manager Associate, a position that Petitioner never held during her employment with Respondent. Ms. Durocher testified that Chance was not paid more than Petitioner. In 2019, there were ten individuals who held the position of CSM at the store where Petitioner worked. In addition to Petitioner, those who worked in CSM positions included multiple African-American females and one African-American male. Petitioner did not present any evidence to suggest or establish that any male, or non-African-American, employee was paid more than she was for performing similar work. On October 26, 2019, Petitioner discussed the problem she perceived with her rate of pay with Ms. Durocher. During their conversation, Petitioner raised her voice and the interaction escalated to the point that another employee went to enlist the assistance of the Store Manager. When the Store Manager arrived, he joined the conversation with Petitioner and Ms. Durocher. Ms. Durocher expressed to Petitioner that she believed that Petitioner was being paid commensurate with her skills and duties; and that her rate of pay had been investigated and was determined to be appropriate. Throughout the conversation, Ms. Durocher perceived Respondent’s conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly encouraged Petitioner to calm down, but their attempts were unsuccessful. On the same day, Petitioner’s employment was terminated by Respondent for violating the core Belief of Respect for the Individual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2021. Jamie Rotteveel, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jeruscha Toussaint 5835 Northwest Lomb Court Port St. Lucie, Florida 34986 Allison Wiggins, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Littler Mendelson, P.C. 2301 McGee Street, 8th Floor Kansas City, Missouri 64108 Kimberly Doud, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801
The Issue Whether Respondent, AAR Airlift Group, Inc. (Respondent), committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Gabriel C. Gaudio (Petitioner), be granted.
Findings Of Fact Petitioner is a male over 50 years of age. On or about May 9, 2009, a company located in North Carolina hired Petitioner to work as a Technical Publications Clerk. Petitioner was over 40 years of age at the time of his employment. Prior to March 2012, Petitioner relocated to Florida to continue employment with the company that then became known as AAR Airlift Group, Inc. Respondent does business in Melbourne, Brevard County, Florida, and has over 15 employees, one of whom was Petitioner. At all times material to this matter, Respondent employed Steve Lane (Lane) and Melvin Zahn (Zahn) as supervisors with the company. At all times material to the allegations of this case, Respondent had policies that prohibit discrimination on the basis of age, disability, and any other reason prohibited by law. Any employee who believed discrimination had occurred was directed to report to the local Human Resources Department or to the Corporate Vice President of Human Resources. Respondent’s employees are considered “at will.” Respondent reserves the right to involuntarily terminate any employee for any reason or for no reason unless to do so would violate law. Petitioner maintains he was terminated in retaliation for a complaint he submitted because of his age, or because of his disability. All of the actions complained of occurred between March 2012 and June 2012 (when Petitioner was terminated). It is undisputed that Petitioner’s age would establish he is a member of a protected class. It is undisputed that Petitioner was terminated after he submitted a complaint against his co-workers. Although Petitioner asserted he is disabled, Petitioner presented no evidence to establish the nature of his disability or that Respondent required him to perform tasks contrary to his physical or mental limitations. There is no evidence that Respondent failed to accommodate any claimed limitation Petitioner might have had. In April 2012, Respondent issued a Performance Improvement Plan (PIP) to Petitioner to outline areas of his job performance that needed improvement. It was anticipated that Petitioner would address the areas of concern and make improvement within 90 days. Upon receipt of the PIP Petitioner filed a claim of hostile work environment with the company’s human resources office. More specifically, Petitioner claimed two employees, Zahn , technical publications manager, and Rachel Grygier (Grygier), a technical publications librarian, had disparaged him regarding his age and disability. To address Petitioner’s complaint, Respondent initiated an internal investigation of the claim. As part of the investigation process, Respondent directed Petitioner not to disclose or discuss the accusations of his claim with anyone. Respondent sought to resolve the matter without having the allegations discussed among employees before individual statements could be taken. Contrary to the directive, Petitioner discussed his complaint against Zahn and Grygier with at least one other employee. That employee (Barnett) e-mailed support for Petitioner to JoAnne Paul (Paul), Respondent’s human resources compliance manager. When Paul confronted Petitioner as to whether he had discussed his complaint with Barnett, Petitioner falsely denied knowing Barnett. Paul took Petitioner’s failure to maintain confidentiality regarding his complaint to Lane, Respondent’s director of quality assurance and internal evaluations. Together, Paul and Lane decided to terminate Petitioner. The basis for the termination was two-fold: the failure to follow a directive not to discuss the complaint; and the lack of truthfulness when asked about knowing Barnett. Petitioner maintains that his termination was in retaliation for his complaint against Zahn and Grygier and that the company wanted him out. Petitioner presented no evidence that after his termination he was replaced with a younger employee. Even though Petitioner did not establish the nature of his disability, Petitioner presented no evidence that he was replaced by a non-disabled person or that his handicap caused Respondent to terminate him. Further, Petitioner did not establish that any area of concern noted in his PIP related to his disability. Neither Zahn or Grygier had anything to do with Petitioner’s termination. Finally, Petitioner failed to present credible evidence that filing a complaint against Zahn and Grygier was the genesis for his termination. Petitioner was a long-time employee with the company. He had started in North Carolina and moved to Melbourne with the company. Had Respondent wanted to terminate him for any reason it could have done so prior to the move or after the move. Petitioner’s claim that his complaint against Zahn and Grygier caused the termination is not supported by the weight of persuasive evidence.
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 no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 31st day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Gabriel Gaudio 259 Abernathy Circle, Southeast Palm Bay, Florida 32909 Chelsie J. Flynn, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of a handicap in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a female. She was employed by Respondent beginning in mid-August 2013. Her employment with Respondent ended in the first quarter of 2014. Respondent is an active limited liability company established and doing business pursuant to Florida law. Respondent provides case management services to Medicare and Medicaid recipients. Christine Cauffield, appearing on behalf of Respondent, is Respondent’s founder and CEO. Cauffield testified that Respondent never had more than 14 employees. The undersigned finds Cauffield’s testimony credible. Scott Eller is the founder and CEO of Community Assisted and Supported Living, Inc., a/k/a Renaissance Manor (CASL). CASL never employed Petitioner, and CASL did not share employees with Respondent. The two entities had a business agreement, but the companies are separate and independent of each other. At the final hearing, Respondent presented a Florida Department of Revenue Employer’s Quarterly Report covering each quarterly reporting period commencing on March 31, 2012, and ending September 30, 2014. Each report shows that Respondent employed fewer than 15 employees for each quarter covered by the report. These reports, supported by Cauffield’s testimony, constitute competent substantial evidence that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2012, the year preceding the alleged discrimination; that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2013; and that Respondent employed fewer than 15 employees for each working day in each of the first 40 calendar weeks in 2014.3/ Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
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 Request for Administrative Hearing. DONE AND ENTERED this 15th day of April, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 15th day of April, 2015.
