The Issue The issue in this case is whether Petitioner was retaliated against in violation of the Florida Civil Rights Act of 1992 (FCRA), chapter 760, Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the District by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). On July 1, 2016, the District began operating the educational programs at FCTC, due to the dire financial situation which had developed at the college. In taking over the programs at FCTC, the District immediately recognized that the administrative staff at FCTC was bloated and needed to be streamlined. Further, because FCTC would now be operated by the District, the District endeavored to evaluate FCTC’s structure to determine how it could operate more like a District school, including with respect to personnel structure. The District set out to reorganize and restructure FCTC to align it with the District and address administrative redundancy and financial issues. To facilitate this transition and evaluation, the District placed all administrative employees at FCTC on temporary contracts, effective July 1, 2016. This decision was made sometime in June 2016. On the morning of July 1, 2016, all employees of FCTC were called to a meeting held by Dr. Joseph Joyner, the District Superintendent. At that meeting, Dr. Joyner introduced Cathy Mittelstadt as the interim principal. At the conclusion of the meeting, all administrative personnel, including Petitioner, were offered temporary employment contracts, for a term of approximately six months. The contracts could be terminated by either party with two weeks’ notice. No administrative employee was placed on a longer temporary contract. The temporary employment contracts, including Petitioner’s, began on July 1, 2016, and terminated on December 21, 2016. Petitioner’s temporary employment contract expressly incorporates District Board Rule 6.10(3). Board Rule 6.10(3) concerns temporary employment with the District, and provides that temporary employees work for a limited amount of time. The rule does not state that temporary employees enjoy an expectation of employment beyond the contract term. As the interim principal, Ms. Middelstadt was tasked by the District with evaluating the structure of FCTC to determine how it could be streamlined to address budget and financial issues and also bring it in line with how other District schools operated. The elimination of positions at FCTC was contemplated as part of this evaluation. Every administrative position at FCTC was evaluated for potential elimination. Ultimately, Ms. Mittelstadt was responsible for recommending to the District’s Executive Cabinet (Executive Cabinet) how FCTC should be restructured. As part of this process, Ms. Mittelstadt was also responsible for recommending to the Executive Cabinet those positions that would be eliminated as part of the restructuring process. The Executive Cabinet did not reject any of Ms. Mittelstadt’s recommendations, but rather, accepted them without change. The Executive Cabinet would not have taken any action with respect to any employee working at FCTC without a recommendation from Ms. Mittelstadt. Ms. Weber had limited involvement in the restructuring process. She provided ministerial assistance to Ms. Mittelstadt during this process, but she was not responsible for, or involved in, the decision as to how the school would be restructured, or for any recommendations regarding the same. FCTC employees were kept informed as to the status of restructuring during the process. Ms. Mittelstadt and Ms. Weber did not tell any administrative employee at FCTC, including Petitioner, that they could expect their contract would be renewed or that they would retain their positions past the term of their temporary employment contract. Petitioner understood that he was being appointed to a temporary employment contract not to extend past December 21, 2016. Ms. Mittelstadt made the determination as part of the restructuring process that Petitioner’s position should be eliminated, and that his temporary employment contract would be allowed to expire pursuant to its terms. Ms. Mittelstadt recommended this course of action to the Executive Cabinet, which approved it. Through Ms. Mittelstadt’s evaluation and assessment of the needs of FCTC, she determined that a full-time grant writer was not necessary for FCTC. Certain tasks related to grants obtained by the School District, including accounting related tasks, are handled in the District’s main office, and the remaining tasks related to grants are handled at particular schools by a different position, career specialists. Indeed, no other District school employs a full-time grant writer. In furtherance of the District’s decision to streamline administration at FCTC and realign it with how other District schools operated, Ms. Mittelstadt determined that the grant writer position occupied by Petitioner, as well as another type of position at FCTC, the program manager position, should be eliminated, and the duties performed within those positions subsumed within the career specialist position, as in other District schools. The District distributed a vacancy announcement for the Career Specialist position to all FCTC employees, including Petitioner. The announcement included a job description for the position. The job description and vacancy announcement were used to fill the position. The job description provides that grant writing and management, encompassing Petitioner’s duties as a grant writer, are part of the duties, among others, of a career specialist. Petitioner did not apply for this position. Petitioner was informed at a meeting on November 18, 2016, that his contract would be allowed to expire effective December 21, 2016, and not renewed. Present at this meeting, in addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and Brennan Asplen, the District’s Deputy Superintendent for Academic & Student Services. At the meeting, Petitioner was provided a notice indicating that his temporary employment contract was expiring pursuant to its terms. Petitioner was permitted to work through the remainder of his contract term with no diminution in benefits or pay. Petitioner requested to be placed in another position at FCTC at this time, but was informed there were no vacancies posted for him to be moved to, that the District was not placing non-renewed employees into positions, and that he could apply to any position he liked when it was posted. One position, a Case Manager in the Career Pathways program, was funded from a grant, and that position was technically vacant under the grant. However, FCTC was in a hiring freeze at the time, as Ms. Mittelstadt made the decision to not fill the Case Manager position given, and during, the extensive realignment and assessment of FCTC whose budget was being scrutinized at a deep level. The District did not place any other non-renewed employees into positions. The Case Manager position was eventually advertised in April 2017. Petitioner did not apply for the position despite being informed of it and having nothing restricting him from doing so. Petitioner’s work performance played no role in the decision to eliminate his position. Ms. Mittelstadt and Ms. Weber both indicated that they did not retaliate against Petitioner for any reason. In fact, Petitioner was not the only person whose position was eliminated. Ms. Mittelstadt also recommended that six or seven other positions also be eliminated. Furthermore, approximately 12 to 15 FCTC employees resigned, and their positions were eliminated. Had those employees not resigned, their positions still would have been eliminated and those employees’ contracts would have been allowed to expire. Petitioner filed the complaint or charge, at issue in this proceeding, with the FCHR on December 22, 2016 (December 22nd Complaint). In it, Petitioner alleges that he was retaliated against in violation of the FCRA. While Petitioner was not represented by counsel at the time that he filed the December 22nd Complaint, he obtained representation from a lawyer thereafter, and during the FCHR’s investigation of this complaint. This was not Petitioner’s first complaint filed with FCHR concerning his work at FCTC. Just before the District began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed a complaint (June 27th Complaint) with the FCHR also alleging retaliation. The June 27th Complaint was received by the FCHR on June 28, 2016. Petitioner introduced no evidence showing that at the time the decision was made to place individuals on temporary employment contracts, that the District was aware of his June 27th Complaint. Petitioner alleges in the December 22nd Complaint that the District terminated his employment because he engaged in protected activity under the FCRA. Petitioner does not allege in the complaint that he was subjected to a hostile work environment or harassment due to any retaliatory animus on the part of the District. Rather, Petitioner only alleges that he believes he frustrated his supervisor at various times, not that he was subjected to a hostile work environment. On August 17, 2017, the FCHR issued a no-cause determination. On September 20, 2017, Petitioner filed a Petition for Relief from Unlawful Employment Practice, initiating the instant proceeding. In the Petition, Petitioner largely alleges that he believes the District submitted false information to the FCHR and that the District was guilty of various acts of fraud and abuses. Specifically, Petitioner alleged: Not only did the SJCSD lie about its relationship with FCTC, the SJCSD deliberately lied about my position working collaboratively with other SJCSD personnel assigned to grants administration and my unique ability to assist the SJCSD in avoiding mistakes that they were driven to make, mistakes that rose to the point that they became criminal. The SJCSD committed to a path of making such criminal errors with federal funds and falsifying their account of why they fired me. I have assembled sufficient evidence to show that the SJCSD is guilty of violating the Racketeer Influenced and Corrupt Organizations Act and that they fired me as a whistle blower having abundant evidence of their crimes committed against the public interest for the personal benefit of key administrators. In his Petition, Petitioner did not identify reasons why he believes the FCHR’s “No Reasonable Cause” finding was without merit. And other than his alleged retaliatory firing, Petitioner does not identify any other adverse effects that he suffered as a result of the SJCSD “criminal” activities, or allege that he was subjected to a hostile work environment. Petitioner alleged for the first time at hearing that the District subjected him to a hostile work environment in retaliation for engaging in protected activity. He alleged this hostile work environment centered on three actions. First, that the District did not provide him a copy of a harassment complaint filed by another employee concerning him in a timely manner, and did not set up the meetings he requested to address that complaint the way he wished. Second, that District personnel did not provide him access to “SunGard” software. And, third, that District officials asked him to sign a form related to grants that he did not wish to sign. Regarding the first allegation, sometime prior to July 1, 2016, Renee Staufaccher filed a complaint with Stephanie Thomas regarding Petitioner’s conduct. This complaint was lodged while the District was not operating the programs at FCTC. District officials told Petitioner that complaints lodged during this time period should be referred to FCTI. Once the District began operating the programs at FCTC, Petitioner reached out to Ms. Weber for a copy of Ms. Staufaccher’s complaint. Ms. Weber took steps to obtain that complaint, and it was provided to Petitioner within roughly two weeks of his request, despite Ms. Weber being out of the office one of those weeks. Petitioner requested to meet with Ms. Staufaccher and Ms. Thomas regarding the nature of the complaint and his concerns about whether the complaint was authentic. Ms. Staufaccher was no longer employed at FCTC within a matter of days of this request. Petitioner also requested to meet with Ms. Thomas only a matter of days before she ceased working at FCTC. Petitioner was not afforded the meeting or other items requested because the matter concerned old, not ongoing events occurring prior to the time the District began operating FCTC. Petitioner did not interact with, or report to, Ms. Staufaccher or Ms. Thomas during this time, and neither supervised him. Petitioner never disclosed to the District that he was suffering continued harassment at the hands of Ms. Staufaccher or Ms. Thomas subsequent to July 1, 2016. Petitioner offered no evidence that his request was handled differently from any other District employee, and Ms. Weber credibly testified he was treated the same as any other District employee in this regard. Regarding the second allegation, Petitioner alleged at the hearing that the District did not provide him access to SunGard, a computer program that had some relation to the performance of his job duties. At hearing, Petitioner represented that he was never provided access to this program. However, he later conceded that he did have access to this program during his employment. Specifically, prior to being given direct access to this program, Petitioner was provided access to the information in the program through the assistance of another District employee. This provided Petitioner with access to the information he needed to perform his job, including generating reports. Accordingly, it was not necessary for Petitioner to have direct access to SunGard to perform his job duties. The District was not authorizing extensive access to SunGard during this time because it was in the process of creating new systems and processes to bring FCTC in line with the District’s standards. In short, Petitioner was still able to perform his job, despite his complaint that he was not given direct access to SunGard. As to Petitioner’s third complaint, on or about October 2016, Jena Young, formerly employed in the District’s accounting office, asked Petitioner to sign a form related to grant accounting. Ms. Young was not Petitioner’s supervisor. Petitioner stated that he did not want to sign the form because he believed there was incorrect information on the form. Petitioner was not forced to sign the form, and was not told he must sign the form or face adverse consequences. Ultimately, he did not sign the form. The District maintains a rule governing harassment in the workplace. The rule provides a complaint procedure for employees to complain of harassment. The rule provides multiple avenues for employees to report harassment, and provides that complaints will be investigated and discipline meted out for employees impermissibly harassing others in violation of the rule. The rule prohibits retaliation against an employee who files a complaint. Notably, Petitioner never filed a harassment complaint about conduct occurring subsequent to July 1, 2016, despite his being aware of the rule. Petitioner’s protected activity at issue in this case concerns his June 27th Complaint and varied grievances that he filed while he was an employee at FCTC prior to July 1, 2016. Petitioner only offered three grievances into evidence--his first grievance, his ninth grievance and his tenth grievance-- all lodged prior to July 1, 2016, and all concerning the conduct of administrators at FCTC while it was still operated by FCTI and not the District. Petitioner’s first grievance was filed on May 21, 2015, alleging that FCTC’s then-president, Sandra Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and in e-mails. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner’s ninth and tenth grievances, both filed on June 13, 2016, allege that Ms. Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s Human Resources Director, and Ms. Stauffacher, were complicit in that nepotism. Indeed, Petitioner testified that the thrust of these grievances was that members of potential protected classes did not get to interview for jobs at FCTC, not because of those protected classes, but because they were not Ms. Fortner’s friends or family. Ms. Mittelstadt had not seen the grievances that Petitioner filed, and had no knowledge of the June 27th Complaint when she determined that his contract be allowed to expire pursuant to its terms and his position eliminated. Petitioner introduced no evidence that Ms. Mittelstadt ever saw any of his grievances or the June 27th Complaint at the time she made the decision to eliminate his position. Ms. Mittelstadt credibly testified that none of Petitioner’s grievances, requests for grievances, e-mails related to grievances, or his June 27th Complaint played any role in her recommendation that his position be eliminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 28th day of June, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 28th day of June, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Gregory Ryan Lulkoski 212 River Island Circle St. Augustine, Florida 32095 (eServed) Michael P. Spellman, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Robert J. Sniffen, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact On October 18, 1971, the Respondent through ordinance Number 201 (Respondent's Exhibit 1) established a civil service system. The ordinance in pertinent part provided that the civil service board shall "adopt, enact and amend a code of rules and regulations for each department covering, among other things, duties, hours of work, discipline and control, rules and regulations for appointment, employment, suspension and discharge of employees based on merit, efficiency, character and industry." Evidence reveals that the Civil Service Board took no action to "adopt, enact or amend a code" pursuant to Section 5 of ordinance Number 201 and, until the unilateral acts here complained of, Respondent had little in the way of written rules and regulations. However, within the Police Department there were "general rules of conduct" which had been promulgated by the Police Chief. (See G C Exhibit 8). Thereafter, the City Attorney drafted an ordinance amending ordinance Number 201 (see Respondent's Exhibit 8). Police Department representatives attended a meeting with the Mayor on June 15, 1975, for the purpose of discussing the proposed amendment to ordinance Number 201. After the meeting, George Slinkman, then President of the FOP, learned of its purpose and was given a rough draft of the proposed amendment. He was informed that the departmental representative had voiced objections to the Mayor concerning the amendment and on July 31, 1975, the proposed amendment came before the City Council at a workshop meeting. Present at that meeting was the President of the FOP who informed the council that the FOP was in favor of implementation of the original ordinance Number 201 rather than the proposed amendment to which the FOP objected. President Slinkman indicated that if the Respondent was proceeding with the new amendment as proposed, the FOP would like to provide some input into the proposal. No further action on the proposed amendment was taken by the City Council at that meeting nor did it appear on subsequent council agendas. On December 15, 1975, PERC certified the Charging Party as the exclusive bargaining representative of Lauderhill Police Department Employees in the following unit. INCLUDED: Police Detectives, Officers and Sergeants. EXCLUDED: Police Lieutenants, Captains and the Chief. (See G.C. Ex. 7). Approximately two weeks later, the City Service Rules and Regulations, first part, through implementing resolution Number 511 (G.C. Ex.2) was presented to the City Council by the Mayor as an implementation of Civil Service Ordinance Number 201. The rules contained therein governed personnel recruitment and examinations for positions within the City. The Mayor informed the Council that there had been no employee input on such rules. While members of the Council received their copies approximately five days prior to the December 30th Council meeting, they were informed at the meeting that copies had not otherwise been distributed. City resolution no. 511 was passed by the City Council at the December 30, 1975, meeting and became effective immediately. Apart from the fact that witnesses George Slinkman, the former President of the FOP and President Elect Ralph Dean testified that Respondent failed to request input from the FOP on the rules as adopted, they also testified that no agent of the Fraternal Order of Police was made aware of the existence of the newly passed resolution until several days thereafter. (TR.401-402, 420-422). On or about April 22, 1976, Richard Witt, FOP State President, wrote to Mayor Cipolloni advising that he had been asked to represent the Charging Party in collective bargaining negotiations with the Respondent. Witt requested a meeting with the Mayor for the purpose of discussing negotiations. In response, the Mayor suggested the parties meet during the morning of April 28, in the Mayor's office. On Tuesday night, April 27, the Mayor introduced the City Service Rules and Regulations, second part, along with implementing resolution Number 571 to the City Council. This document contained numerous proposed changes in terms and conditions of bargaining unit employees including changes in appointments, lay-offs re-employment, evaluations, physical and mental exams, weight regulations, hours of work, vacations, holidays, sick leave, suspensions, demotions and grievance procedures. The Council was informed that employees had not provided input on the rules although the Mayor expressed his understanding gained from a recently attended labor relations seminar that Respondent needed a base for forthcoming negotiations with the Charging Party. When it was learned that the Civil Service Board had not been consulted with regard to the document, the resolution was tabled and Civil Service Board members were invited to be present the following evening when it would be brought up again, Richard Witt, the Mayor, and Police Chief Ramsdell met as scheduled on the morning of April 28, 1976. Witt requested that prior to collective bargaining the City furnish him with budget documents and other materials pertaining to police officers' health program, welfare and other employment working conditions. The Mayor responded, according to Witt, that it would take some time for him to assemble such but that the information would be forthcoming. That night, the City Council passed resolution no. 571, which adopted the City Service Rules and 7Regulations, save the sick leave policies which became effective January 1, 1977. (See G.C. Ex. 6). Ralph Dean, the President of the Charging Party testified that Respondent was not requesting input from the FOP on the rules and regulations, second part, nor had FOP representatives been furnished copies of the documents prior to their adoption. Additionally, he testified that the Charging Party was not notified of the pending adoption of the document and did not obtain a copy of such until after passage on April 28, 1976. Corroborative testimony on this point was given by Councilwoman Hatcher and employees Dean and Slinkman. The parties' first negotiation session was held on May 22, 1976 and at that time the Charging Party advised the Mayor and the City Attorney that in their opinion, some of their proposals were in violation of existing City ordinances, including the rules and regulations first and second parts. Two days thereafter, on May 24, 1976, the Charging Party filed with the Commission the instant unfair labor practice charges. The parties were again scheduled to meet on May 28, 1976. Upon receipt of the unfair labor charges, the City Council met with the Mayor in "executive session" and it was then decided that Respondent would "suspend bargaining" until the charges were disposed of. The Mayor arrived at the May 28th session and informed the Charging Party that Respondent would not return to the bargaining table until the pending charges had been resolved. A second charge was filed against the Respondent alleging essentially that the Respondent's suspension of bargaining constitutes a refusal to bargain in good faith within the meaning of Section 447.501(a)(c) of the Act. The evidence also reveals that on approximately March 30, 1976, the Respondent adopted a pay plan for its police department employees who are in the bargaining unit in which the Charging Party was certified to represent. The pay plan, as adopted, represented a reduction in the existing pay plan. In adopting this plan, Frank C. Brown Associates, a management consulting firm, was commissioned to conduct a study to devise a pay plan for all city employees. The evidence reveals that the wage and job classification plan prepared by Frank C. Brown and Associates was not compiled based on any joint efforts by the Charging Party who had been certified to exclusively represent the police unit employees. Specifically, Ralph Dean objected to the new pay plan and in fact, Mayor Cipolloni testified that he gave no direction to Frank C. Brown and Associates to seek any input from the Charging Party and/or its agents. Based on the Charging Party's objections to the pay plan as submitted by Frank C. Brown on February 9, 1976, one pay grade was added to each of the ranks. The plan was submitted to the City Council on March 30, 1976 and was made effective immediately for all employees. Representatives of the Charging Party were present at this meeting and objected to the implementation thereof to no avail. Thereafter, and during the second negotiation session on May 28, 1976, the Respondent suspended negotiations with the Charging Party based on the fact that the Charging Party had filed unfair labor practice charges with the Commission.
Conclusions The essence of the collective bargaining relationship between public employers and its employees in the State of Florida is outlined in Chapter 447.309(1), Florida Statutes (1975). The dictates there mandates a bilateral decision making process which becomes effective after an employee organization has been certified by the Commission. At that juncture, the public employer is no longer free to make unilateral determinations with respect to items which are considered "wages, hours, and terms and conditions of employment". See for example District School Board of Hillsborough County and Hillsborough C.T.A., PERC order no. 76U-1181 (October 4, 1976). The Charging Party and/or its agents objected to the City Service Rules and Regulations first and second parts each time they were brought up before the Council. Respondent at no time requested any input from the Charging Party's agents respecting its position in fulfilling its obligation to represent the unit employees it was certified to represent. The Respondent's affirmative defense that the Charging Party's members were advised and participated in the enactment of the City Service Rules and Regulations and the pay scale as it relates to unit employees was considered. However, when an examination of the positive duty placed on the Respondent as it relates to its duty to bargain with the certified representative, such a position fails to withstand scrutiny and amounts to conduct representing an abrogation of its duty to meet with and confer with the designated certified representative. Absent an impasse, necessity or an express or implied waiver (all of which are absent here), the employer was expressly obligated to refrain from taking the unilateral action which it took on December 30, 1975, on March 30, 1976 and on May 28, 1976. Under these circumstances, and in the absence of any evidence which would permit the employer to unilaterally act as stated above, the conclusion is inescapable that the Respondent consciously abrogated its duty as set forth in Chapter 447.309(1), F.S., and engaged in conduct violative of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to post at its facilities, in conspicuous places, on forms to be provided by the Commission, a notice substantially providing: that it will bargain collectively, upon request, with the Charging Party as the exclusive bargaining representative of the unit employees as stated above; that it will not make unilateral changes in wages, hours, and other terms and conditions of employment of said employees and that it will not suspend bargaining or fail to meet and bargain collectively with the exclusive bargaining representative unless directed to do so by the Commission. RECOMMENDED this 27th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Irving Weinsoff, Esquire Suite 804, Roberts Building 28 West Flagler Street Miami, Florida 33130 Bruce A. Leinback, Staff Attorney for William E. Powers, Jr., General Counsel 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esquire 6299 West Sunrise Boulevard Suite 205 Sunrise, Florida 33313
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 of all claims.
Findings Of Fact On June 29, 2012, Petitioner's employment with Respondent was terminated. On July 24, 2012, Petitioner filed a Charge of Discrimination alleging that he was subjected to discrimination. On August 18, 2012, Petitioner signed an agreement. Under the agreement, Respondent agreed to pay Petitioner $5,000.00, net several items, provided Petitioner did not exercise his right to revoke the agreement within the seven days following execution, as provided in the agreement. Petitioner did not revoke the agreement, and Respondent discharged all obligations under the agreement. In exchange, Petitioner agreed to release Respondent from all claims, damages, suits, complaints, damages, losses and expenses, of every nature, legal or equitable, whether known or unknown, which Olascoaga ever had, now has, or may claim to have, upon or by reason of the occurrence of any matter, cause or thing whatsoever . . . . This release specifically includes, but is not limited to, a release of any and all claims under the Florida Civil Rights Act . . . . There is no contention that Petitioner was not acting knowingly or voluntarily when he executed a release of claims.
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 Carlos Olascoaga's Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 11th day of April, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 2014.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on May 4, 2001.
Findings Of Fact Petitioner is an African-American woman who was employed by Respondent from July 2000 until her termination on January 24, 2001. At the time she was hired, the staff at the store location where Petitioner was employed was comprised of mostly black females. Initially, Petitioner held the position of hotline operator. In December 2000, she became an assistant manager of the store and another African-American woman, Latasha Green became the store manager. According to Petitioner, problems began to arise after she and Ms. Green were promoted to managerial positions. While an assistant manager, Petitioner's duties included closing the store and taking deposits to the bank where she had a key to the store's safe deposit box. On January 5, 2001, Petitioner and Ms. Green attended a meeting with their supervisor, Jason Rudd, a white male. This meeting was upsetting to Petitioner because of comments made to her and to Ms. Green by Mr. Rudd. In particular, Mr. Rudd commented that there were too many "dark clouds" in the store, which Petitioner interpreted to be racist remarks. At the January 5, 2001, meeting, Petitioner learned that a white male, Jason Smith, was going to be brought in as the new store manager. With this change in personnel, Ms. Green was demoted from store manager to assistant manager and Petitioner was demoted from assistant manager to hotline operator. When Petitioner was demoted, she did not receive a cut in pay. Petitioner informed Mr. Rudd that it was her intention to leave her employment with Respondent because her sister was ill. She informed Mr. Rudd that January 25, 2001, would be her last day. However, she was terminated on January 24, 2001. Between January 4 and January 24, 2001, three white males were hired, and four black females, including Petitioner and Ms. Miller, were discharged. The reason for her termination on the Report of Employee's Termination form was "not working out." However, on the same form, her job performance, attendance, and cooperation were rated as "good." Additionally, the form had a blank following the question, "Would you rehire this employee?" The blank was filled in, "yes." Petitioner filed for unemployment compensation and initially received $512.00 in unemployment benefits. However, after a telephone hearing, the Division of Unemployment Compensation informed her that she must repay the $512.00. At the time of her discharge, Petitioner was earning approximately $250.00 per week. Petitioner seeks back pay, the $512.00 in unemployment compensation, and a verbal apology from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that Respondent engaged in unlawful discrimination and paying Petitioner $50.00 in back pay. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 18th day of September, 2003.
The Issue The issue is whether Respondents violated the Florida Civil Rights Act (the Act), as amended, as alleged in Petitioner's Employment Complaint of Discrimination.
Findings Of Fact Petitioner is an African-American female. She began employment with Staff Builders around October 2012 and continued working with that entity until she voluntarily resigned around May 2014. As the name implies, Staff Builders is a staffing agency in Lakeland, Florida, that provides temporary staffing for various clients in the Lakeland area. One client is Max- Pak, a manufacturing firm also located in Lakeland. A service agreement has been executed by the two companies to formalize this arrangement. Because the evidence shows that Max-Pak was able to exercise control over the manner in which Petitioner and other temporary employees performed their duties, a joint employer relationship is present. See, e.g., Amarnare v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 611 F. Supp. 344, 349 (D.N.Y. 1984); Washington v. Cingular Wireless, LLC, Case No. 05-2988 (Fla. DOAH Oct. 25, 2005; FCHR Jan. 6, 2006). Before an employee is placed with a client, Staff Builders provides in-house training regarding work rules. Each employee is required to sign a training checklist acknowledging that he/she has received this training. Exhibit 8 reflects that Petitioner received this training on October 15, 2012. As a part of her training, before she was assigned to work at Max-Pak, Petitioner was given a copy of Max-Pak's work rules. See Resp. Ex. 7. Among other things, the rules provide that if an employee is "threatening, intimidating, coercing or interfering with fellow employees at any time," it would "usually lead to the immediate dismissal at the first offense." Employees are expected to follow the work rules of both Staff Builders and their temporary employer. When the underlying incident occurred, Petitioner was working as a temporary employee for Max-Pak in the assembly line. On March 24, 2014, the men's restroom was out of service. This required that both male and female workers use the women's restroom until the men's restroom was restored to service. That morning, Petitioner went to the restroom, knocked on the closed door, and a male voice responded "wait a minute." The person using the bathroom was Tommy Engram, an African- American male who worked as a temporary staffing employee in the shipping and receiving department. Although the testimony describing the incident is quite limited, the more credible evidence shows that when Engram exited the restroom, Petitioner demanded to know why he was using the women's restroom. "Words" between the two ensued, including a comment by Engram that Petitioner should not disrespect him. Petitioner testified that she was insulted by the tone and demeanor of Engram's words, and had she not been a female, he would not have spoken to her in the manner that he did. However, there is no credible evidence that Engram used profanity or words of a sexual nature, or that his remarks were motivated by gender considerations. When Petitioner spotted Engram in her work area a few minutes later, she demanded to know why he was there. The two had further words, and Petitioner told Engram she would have her boyfriend "beat him up." She then telephoned her boyfriend, Kenneth Graham, and told him about the incident. By threatening Engram in this manner, Petitioner violated a Max-Pak work rule that prohibits an employee from threatening or intimidating a fellow employee and was subject to immediate dismissal. That same evening, Engram went to "the trees," a local area frequented mainly by African-Americans where they socialize and drink. Graham was also at the trees that evening, and after he spotted Engram, Graham says they began arguing about the restroom incident and a "fist fight" between the two took place. Engram suggested that the fight was instigated by Graham, and his version of events was corroborated by a witness to the fight, whose statement indicates that Graham initiated the skirmish. See Resp. Ex. 2. Engram's version is accepted as being more credible. The next morning, Engram reported the incident to Ford. After Ford and Max-Pak conferred, Staff Builders advised Petitioner that Max-Pak no longer wanted her as a staffing employee at their plant. This action was taken solely because Petitioner had violated a Max-Pak work rule by threatening Engram with physical harm. There was no evidence that the decision by either Respondent was based on Petitioner's gender. This was not the first time a temporary employee at Max-Pak was asked not to return for violating work rules. Two other Staff Builder workers, both males, were also reassigned to another client after violating the same anti-violence work rules. Petitioner continued working for Staff Builders and was assigned to staff another client in Tampa, where she worked for four or five weeks. After finding a permanent job, Petitioner voluntarily resigned her position with Staff Builders around May 2014. Petitioner's complaint was filed on June 30, 2014. She says it was filed because no one would tell her why she could not return to Max-Pak. However, at no time before the complaint was filed did Petitioner advise either Max-Pak or Staff Builders that she believed her "termination" was because of her sex. In fact, the only person she reported any alleged discrimination to was "Jade," a co-worker whose last name was not given.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner against both Respondents. DONE AND ENTERED this 25th day of February, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2015.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Background From 2006 through May 3, 2010, Petitioner was employed by Respondent as a classification officer at Glades C.I.1 At all times material to this proceeding, Robert Shannon served as the warden at Glades C.I. and was responsible for the daily operation of the facility. Petitioner's immediate superior, Everett McPherson, supervised Petitioner, several other classification officers, and three senior classification officers. Petitioner contends that during her term of employment with Respondent, one of the senior classification officers (Barry Carrigan) and another co-worker (Janet Smith) subjected her to a hostile work environment. In addition, Petitioner alleges that she was subjected to a variety of discrete acts of discrimination, which include: a search of her person in May 2009; a written reprimand in June 2009; a delayed transfer to the work camp facility located at Glades C.I.; a belated performance evaluation from her supervisor; delayed training opportunities; and a prohibition against bringing her bible into the facility. Beginning with Petitioner's hostile environment claim, each allegation is discussed separately below. Improper Comments / E-Mails On December 23, 2008, various Glades C.I. employees—— including Petitioner and Mr. Carrigan——attended a Christmas luncheon on the grounds of the facility. During the event, Mr. Carrigan remarked to the other attendees (but not to Petitioner in particular) that all African-Americans from the city of Pahokee look like "monkeys" and African "tribesmen." In addition, Mr. Carrigan opined, in essence, that women are inferior to men.2 Understandably offended, Petitioner reported the remarks the next day by filing an anonymous complaint with Warden Shannon. An investigation ensued, at the conclusion of which Warden Shannon suspended Mr. Carrigan for ten days.3 Subsequently, in May 2009, Petitioner discovered copies of two e-mails on the floor of her office, which were sent by a co-worker, Janet Smith (on Ms. Smith's work e-mail account), to another employee, Tricinia Washington. In the e-mails, Ms. Smith called Ms. Jackson "Blackee," and referred to Petitioner as a "monkey and idiot." Upset by the contents of the e-mails, Petitioner timely reported the contents of the e-mails to Warden Shannon. At the conclusion of an investigation into the matter, Ms. Smith was suspended for five days. Search of Petitioner On or about May 15, 2009, Mr. McPherson observed Petitioner exiting the prison facility carrying a bulky package that he thought was suspicious. In compliance with Respondent's entry and exit procedure, Mr. McPherson notified the prison control room with the expectation that a search of Petitioner's person would occur. A search of Petitioner was subsequently conducted, which yielded no contraband or other improper items.4 During the final hearing, Warden Shannon credibly testified that because of unique problems regarding contraband at Glades C.I., facility employees are subject to search upon exit from the facility. As such, Mr. McPherson committed no violation of policy by reporting what he observed Petitioner carrying as she left the facility. Reprimand On June 24, 2009, Warden Shannon disciplined Respondent by issuing a written reprimand. Warden Shannon credibly testified——and there is no evidence to the contrary—— that the reprimand was prompted by an incident in May 2009 in which Petitioner, in a loud and aggressive voice, called a co- worker "low down and dirty" in the presence of other employees. As a result of the written reprimand, Department of Corrections Procedure 605.011 rendered Petitioner ineligible for promotion for a six-month period. Accordingly, Petitioner could not apply for an assistant warden position during the summer of 2009 that she was interested in pursuing. However, Petitioner failed to prove that the reprimand was unwarranted or issued with the intent to deprive Petitioner of a promotional opportunity. In addition, there is no evidence that Warden Shannon issued the reprimand based upon a protected characteristic of Petitioner or in retaliation for five discrimination complaints Petitioner filed through Respondent's internal complaint procedure approximately one month before the reprimand.5 Late Performance Evaluation As indicated previously, Everett McPherson served as Petitioner's immediate supervisor during her term of employment. As a classification officer supervisor, Mr. McPherson was responsible for preparing annual performance evaluations of his subordinates, including Petitioner, by the end of each April. The evidence is undisputed that Mr. McPherson failed to timely complete Petitioner's evaluation, a copy of which was not provided to her until June 2009. While Mr. McPherson attempted during his final hearing testimony to attribute the delay to Petitioner, he was unable to recall on cross- examination if he had even completed a draft of Petitioner's evaluation by April 30, 2009. Accordingly, it is determined Mr. McPherson was responsible, at least in part, for the late completion of Petitioner's evaluation.6 Although Petitioner asserts that the belated performance evaluation deprived her of the opportunity to apply for an assistant warden position, the evidence refutes this contention. First, as discussed above, Petitioner's June 24, 2009, reprimand rendered her ineligible for promotion for six months. Further, even if Petitioner's reprimand did not temporarily disqualify her from seeking a promotion, Warden Shannon credibly testified that pursuant to Department of Corrections Procedure 605.011, Petitioner could have timely submitted a promotional packet once her evaluation was completed. Training Opportunities During the final hearing, Petitioner testified that she was unable to obtain re-training to conduct criminal background checks because Mr. McPherson refused to provide her with a computer "code" necessary to complete an on-line course. Petitioner further testified that she filed a grievance regarding the matter that resulted in the training being conducted within one month. Although the undersigned credits Petitioner's testimony as to particular claim, she adduced no evidence concerning when this event occurred, nor did she prove that the delay adversely affected her ability to complete her duties or impeded her ability to seek promotion. In addition, Petitioner failed to demonstrate that Mr. McPherson was motivated by any unlawful animus. Transfer to Work Camp At some point during June 2008 or earlier, Petitioner requested a lateral transfer from the main unit at Glades C.I. to the facility's work camp. Petitioner was ultimately transferred to the work camp shortly before her termination in May 2009. Although Petitioner complains that she was not transferred to the work camp at an earlier date because of her gender, she adduced no evidence to support such an allegation. Further, Petitioner made no showing that the transfer to the work camp resulted in increased pay, benefits, or materially different responsibilities. Allegations of Religious Discrimination During all relevant times to this proceeding, Department of Corrections Procedure 602.016(4)(j)17 prohibited prison employees from bringing "recreational reading material (non-work related) such as books, magazines, newspapers, etc" into secure areas of corrections facilities. There is no dispute that "recreational reading material" encompasses religious texts and that the policy therefore barred Petitioner from brining her Gideon Bible into the facility. However, Petitioner has wholly failed to demonstrate that the policy is improper on its face or was applied differently to any other prison employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 22nd day of July, 2011, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 22nd day of July, 2011.
The Issue Whether Respondent, Cracker Barrel Old Country Store (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, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
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 10th day of April, 2012, 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 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, 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 act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2013.
