The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
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 dismissing the complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in these consolidated cases was issued on November 17, 2010, setting the hearing for January 24 and 25, 2011, in Tallahassee, Florida. The hearing was scheduled to commence at 9:30 a.m. on January 24, 2011. Also on November 17, 2010, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On January 19, 2011, Petitioner filed a letter at the Division of Administrative Hearings requesting that the hearing be delayed until after February 18, 2011, due to various appointments she had made that conflicted with the hearing dates. This letter indicated that Petitioner was aware of the scheduled hearing dates. By order dated January 20, 2011, the undersigned declined Petitioner's request for failure to state grounds sufficient to warrant a continuance over the objection of Respondent. Several attempts to reach Petitioner by telephone were unavailing. At 9:30 a.m. on January 24, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:45 a.m. Counsel for Respondent entered her appearance and requested the entry of a recommended order of dismissal. The hearing was then adjourned. As of the date of this recommended order, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
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 Petitions for Relief in these consolidated cases. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011. COPIES FURNISHED: Kimberly D. Dotson 825 Briandav Street Tallahassee, Florida 32305 Kim M. Fluharty-Denson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary Kowalski Department of Financial Services Human Resource 200 East Gaines Street, Suite 112 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner, Stephanie Walker, timely filed a Petition for Relief regarding her charge of discrimination against the Respondent, Bennett Auto Supply, Inc.
Findings Of Fact The Petitioner, Stephanie Walker, applied for and received employment with the Respondent, Bennett Auto Supply, Inc. The Petitioner's initial employment with the company ended on March 8, 2001, as she resigned her job on or about February 26, 2001. Thereafter, the Petitioner returned to employment with the Respondent. Again, the Petitioner resigned her job and left employment on April 27, 2002. The exact reasons the Petitioner began employment, left employment, returned to employment, and again left employment with the Respondent are immaterial to the findings dispositive of this case. Suffice it to say the Petitioner ultimately filed a claim of discrimination with the FCHR against the Respondent. The Petitioner's Charge of Discrimination naming the Respondent was dated March 21, 2003, and noted April 27, 2002, as the date the most recent discrimination had taken place. Based upon its investigation of the allegations, the FCHR issued a Determination: No Cause on September 23, 2003. The Determination: No Cause provided, in pertinent part, ". . . it is my determination that there is no reasonable cause to believe that an unlawful employment practice has occurred." The Notice of Determination: No Cause, provided: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. If the Complainant fails to request an administrative hearing with [sic] 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to section 760.11, Florida Statutes (1992). The Petition for Relief was filed approximately 159 days after the FCHR issued its determination in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's Petition for Relief as it was not timely filed and is, therefore, barred as a matter of law. DONE AND ENTERED this 29th day of April, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Aplachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard A. Giardino, Esquire Davis & Giardino, P.A. 201 Arkona Court West Palm Beach, Florida 33401 Stephanie Walker 1808 Northwest 52nd Avenue Lauderhill, Florida 33313
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Fredrick Bass, was subjected to employment discrimination by the Respondent, The University of West Florida, on account of his race or disability or as retaliation because of his past filing of an EEOC complaint against a former employer.
Findings Of Fact The Petitioner is a black male with a disability involving a post- traumatic, arthritic condition of the left knee. In his past work history, the Petitioner had been a firefighter. When he was thus employed, on one occasion, he filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) against the fire department where he was employed. The Respondent is the University of West Florida, a state agency. It became embroiled in the disputes at issue when it first advertised for the filling of a vacancy for the position of Senior Custodial Supervisor and, after the advertising and interviewing process described below, hired another black male with a disability, instead of the Petitioner. The Respondent advertised to fill the vacancy for the position of Senior Custodial Supervisor because of the death of the person who had previously occupied that position. There was an insufficient response to the first advertisement of the vacancy, and Dan Simpler, the Director of Building Services for the Respondent, who would supervise the occupant of that position, requested that the position be re-advertised. The Petitioner had not responded to the first advertisement, in any event. The second advertisement was issued in August of 1993. This time, the Petitioner was one of the applicants who responded. Several applicants withdrew after learning that the salary for the position would be at the lower-end of the advertised salary range and was insufficient for their needs. This left the Respondent with only three remaining applicants, who appeared to meet the minimum qualifications for the position. One of the three applicants was the Petitioner. The Respondent, in the conduct of its application and selection process, inquired of former employers, concerning whether they would give an applicant a favorable recommendation. The Respondent so inquired of the Petitioner's former employers. The Respondent was unable to obtain a favorable recommendation from any of the Petitioner's former employers. In response to Mr. Simpler's inquiry, the Chief of the Fire Department at the Naval Air Station in Pensacola, Florida, the Petitioner's most recent former employer, informed Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. The Petitioner had informed Mr. Simpler that he believed that the Chief of the Fire Department would not give him a favorable recommendation because the Petitioner had once filed a complaint with the EEOC against that employer. In any event, Mr. Simpler deemed that having a pool of only three applicants gave the Respondent insufficient choices for the position. Therefore, he requested that the position be advertised for a third time in order to obtain a larger pool of applicants. In response to the third advertisement, a number of other applications were received. One of them was that of James O. Rankins, who is a male, African-American, who also has a disability. See Respondent's Exhibit 6 in evidence. Mr. Rankins' application reflected considerable supervisory experience, both during his service with the United States Army and his position as a Site Manager for Service Master, Inc. at the Monsanto plant near Pensacola, Florida. He retired from the United States Army as a Sergeant Major, the highest non- commissioned rank. In the opinion of Mr. Simpler and others involved in the hiring at the University, this demonstrated a high level of leadership capability. Since his military retirement, in his capacity as the Site Manager for Service Master, Inc., the maintenance contractor, at the Monsanto chemical plant near Pensacola, Florida, he had supervised 45 custodial personnel. He was responsible for cleaning and maintenance of 150 buildings and shops, as well as over 250 offices and restrooms. The Petitioner was an applicant in the third pool of applications in response to the third advertisement. Mr. Simpler learned of a former employer, Lanyap Corporation, and questioned the former owner concerning the Petitioner's previous employment at that firm. Larry Wiggins, the former owner of Lanyap Corporation, told Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. Mr. Wiggins advised Mr. Simpler that the Petitioner had not been employed as a Supervisor by Lanyap Corporation, although the Petitioner had indicated that to be the case on his application for employment filed with the Respondent. The five persons on the Respondent's selection committee, charged with hiring to fill the subject position, considered the qualifications and experience of all of the applicants. After evaluating all of the applicants, with the assistance of personal interviews, the committee recommended that James Rankins be employed as the Senior Custodial Supervisor. Members of the selection committee recommended Mr. Rankins for the position based upon his superior qualifications and experience, including his demonstrated leadership and supervisory abilities. The Petitioner's race and disability were not factors in the selection process. Indeed, Mr. Rankins is an African-American, also with a disability, as shown by the Respondent's Exhibit 6 in evidence. Ms. Bertha Mae Jones is the staff member at the University who interviewed the Petitioner, as well as Mr. Rankins. Ms. Jones is black and has been employed at the University for 27 years. She does not recall hearing the Petitioner mention his handicap or disability but stated that it would not have mattered if he had one, as long as he could do the job in question. She also interviewed Mr. Rankins and felt that Mr. Rankins had much superior qualifications and experience. He demonstrated that he had had a long-term ability for good supervision. Because of his superior qualifications, Ms. Jones recommended that Mr. Rankins be hired instead of the Petitioner. None of the members of the selection committee, other than the Director of Building Services, knew that the Petitioner had filed an EEOC complaint against one of his former employers. The filing of that complaint was shown to have had no effect on the hiring decision made by the Respondent's selection committee. The selection committee's recommendation that Mr. Rankins be employed to fill the position of Senior Custodial Supervisor was forwarded to the head of the department and to the Vice-President for Administrative Affairs. The recommendation was accepted. Mr. Rankins, a black male with a disability, was hired by the Respondent to fill the subject position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order concluding that the Respondent, the University of West Florida, did not commit an unlawful employment practice, by employing James O. Rankins to fill the position of Senior Custodial Supervisor, instead of the Petitioner. DONE AND ENTERED this 3rd day of January, 1996, in Tallahassee, Florida. MICHAEL RUFF, 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 3rd day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2450 Petitioner's Proposed Findings of Fact The following numbers assigned to proposed findings of fact by the Petitioner do not correspond to any numbered paragraphs in the Petitioner's letter/proposed recommended order because there were no such numbered paragraphs. The Petitioner did prove that he belonged to a racial minority, and that proposed finding is accepted. The Petitioner's assertion that he was qualified for the position in question has not been proven, and that is rejected. The Petitioner's proposed finding that, despite his qualifications, he was rejected for the position, is rejected because he was found to be less qualified than the applicant chosen for the position. The Petitioner's proposed finding to the effect that, after his rejection, the position remained open and the employer continued to seek applicants with his qualifications, is rejected as not in accord with the preponderance of the evidence. The relevant advertisement and interviewing process was that after the third advertisement, when the Petitioner remained an applicant and Mr. Rankins' application was received, the position did not remain open, Mr. Rankins was hired at the conclusion of that third advertisement and interview selection process. The remainder of the Petitioner's "proposed findings", in essence, constitute argument concerning the weight of the testimony and evidence but to the extent that he attempts to assert that it has been proven factually that Mr. Simpler had not talked to the fire chief, the Petitioner's former employer, because the telephone numbers at the relevant fire station were not the same as the fire chief's actual telephone number, does not prove that Mr. Simpler did not talk to the fire chief. In fact, it is found that he did. This proposed finding, to the extent that it is one, is rejected. The apparent proposed finding that the five board members on the selection committee found the Petitioner qualified, subject to the fact that it had received bad recommendations from former employers, is rejected as not in accord with the preponderant weight of the evidence. In fact, the Petitioner was not the best qualified person for the position, Mr. Rankins was. These are the only proposed findings of fact that can be gleaned from the letter filed by the Petitioner. The remainder constitutes an attempt at legal and factual argument which do not constitute proposed findings of fact amenable to specific rulings. Respondent's Proposed Findings of Fact 1-13. Accepted. COPIES FURNISHED: Fredrick Bass 75 South Madison Drive Pensacola, Florida 32505 M. J. Menge, Esquire SHELL, FLEMING, DAVIS & MENGE Post Office Box 1831 Pensacola, Florida 32598 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether the Petitioner timely filed her Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations ("Commission").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with investigating and acting upon complaints filed under Florida's Civil Rights Act, Sections 760.01-760.11, Florida Statutes (2006).1 § 760.06, Fla. Stat. On August 14, 2006, the Commission issued a Right to Sue notice, in which it informed Ms. Williams, among other things, that the FCHR hereby issues this Right to Sue. Since it has been more than 180 days since your complaint was filed, and since no determination was made within 180 days, you are entitled to pursue the case as if the FCHR issued a Determination of Reasonable Cause. . . . (Citation omitted). You may pursue this case in the Division of Administrative Hearings by filing a Petition for Relief with the FCHR within 35 days from the date of this Right to Sue letter, or you may file a lawsuit in a circuit court of the State of Florida anytime within one year from the date of this Right to Sue letter, provided such time period is not more than four years from the date the alleged violation occurred. Pursuant to the terms of this notice, Ms. Williams was required to file her Petition for Relief with the FCHR no later than 35 days from the date of the August 14, 2006, notice, that is, no later than September 18, 2006. Ms. Williams completed and signed a Petition for Relief from an Unlawful Employment Practice on September 14, 2006. A receipt from the USPS establishes that, on September 17, 2006, the USPS accepted a letter from Ms. Williams addressed to the Commission; that the letter was sent via express mail; that neither next-day nor second-day delivery was selected; that a third option for delivery, "Add Del Day," was selected. The scheduled date of delivery stated on the receipt was September 20, 2006. Ms. Williams's Petition for Relief from an Unlawful Employment Practice was received by the Commission on September 19, 2006. The USPS tracking website shows that the letter assigned number EQ 628681913 US was delivered on September 19, 2006.
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 from an Unlawful Employment Practice filed by Teesha Williams. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 21st day of November, 2006.
The Issue The issue is whether Petitioner's Charge of Discrimination should be dismissed as untimely pursuant to Section 760.11, Florida Statutes.
Findings Of Fact Petitioner's Charge of Discrimination dated June 2, 1998, alleges that Respondent discriminated against him because of his age and in retaliation for opposing illegal behavior. FCHR received the Charge of Discrimination on June 18, 1998. For purposes of this Recommended Order of Dismissal, it is assumed that the Charge of Discrimination was timely filed with FCHR. As of December 15, 1998, 180 days after Petitioner filed his Charge of Discrimination, FCHR had not assigned an investigator to investigate Petitioner's complaint or taken any other action related to the complaint. As of January 19, 1999, 35 days after December 15, 1998, Petitioner had not requested an administrative hearing. By letter dated June 2, 1999, Petitioner requested FCHR to forward his complaint to the Division of Administrative Hearings. FCHR received the request for an administrative hearing on June 7, 1999. This request was filed 354 days after June 18, 1998, 174 days after December 15, 1998, and 139 days after January 19, 1999. Petitioner does not argue or present any facts to support a finding that the doctrines of equitable tolling or excusable neglect apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
