The Issue Did the Respondent, Forward Air, Inc. (Forward Air), discriminate against Petitioner, Julie McDaniel, on account of her race?
Findings Of Fact There is no evidence. Therefore there can be no findings of fact.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations deny Julie McDaniel’s Petition for Relief. DONE AND ENTERED this 9th day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 9th day of October, 2015. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Julie Ole McDaniel Unit 142 7508 Toscana Boulevard Orlando, Florida 32819 (eServed) John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber, and Carter, P.A. Post Office Drawer 14079 Tallahassee, Florida 32302 (eServed) Robert Best Buchanan, Esquire Siboni and Buchanan Suite 300 1900 Southeast 18th Avenue Ocala, Florida 34471 (eServed) Michael Hance, General Counsel Forward Air Corporation Post Office Box 1058 Greenville, Tennessee 37744 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent committed the unlawful employment practice alleged by Petitioner in her Employment Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") on May 3, 2016; and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the record as a whole and the evidence presented, the undersigned makes the following findings of material and relevant facts: Petitioner started her employment in July 2002 with Events by Premier. The company provides exclusive catering services for the Jewish Center in Aventura, Florida.3/ Petitioner's employment in 2002 followed her marriage to Michael Pollak, a co-owner of Events by Premier. Petitioner became a full-time employee in 2013 and was assigned to the position of kitchen manager. At that point, her husband was the chef and supervised her work in the kitchen. Their work relationship continued in this manner until she was terminated from employment in late July 2015. Petitioner's performance was satisfactory, and there was no evidence to suggest that she was unable to adequately perform her duties as kitchen manager. The evidence was largely undisputed that the position of kitchen manager was created specifically to accommodate Petitioner and her husband, a co-owner of the business. There had been no prior kitchen manager positions at Events by Premier, and the title and position were not needed to operate the business. Another owner of Events by Premier, and its president, was Steven Pollak. He is the brother of Michael Pollak and was Petitioner's brother-in-law. During the weeks leading up to her termination in July 2015, her relationship with her husband, Michael Pollak, became openly strained and tense due to marital problems. Steven Pollak described the work environment between Petitioner and her husband as not a good one, and it created, as he described, a "toxic" work environment. There was screaming, hollering, and profanity exchanged between Petitioner and her husband at work. It was decided that Petitioner needed to be terminated for the best interests of the company and also due to the unprofitability of the company in the first half of 2015.4/ As a result of the poor working environment existing between Petitioner and her husband, and Respondent's unprofitable performance in the first half of the year 2015, Steven Pollak informed Petitioner on July 26, 2015, that he was letting her go.5/ After she was fired, Petitioner filed a Complaint with FCHR. The basis of her Complaint was that she was terminated because of her "marital status." At the hearing, Petitioner explained her opinion regarding the basis for her termination. She felt that her termination occurred because the company feared that she knew things about the company, including improper unemployment claims and other financial information.6/ It was clear to the undersigned that Petitioner had serious emotional and relational issues with her husband that made it difficult, if not impossible, for her to work harmoniously with him. She testified at the hearing and characterized her relationship with her husband after her termination as "out of control." Based upon the evidence presented and the record as a whole, Petitioner was not terminated because of her "marital status." Rather, the evidence demonstrated that there were legitimate and non-discriminatory business reasons for terminating Petitioner. Similarly, her termination was based upon the hostile relationship which existed between Petitioner and her husband, Michael Pollak, in the weeks and months leading up to her filing a petition for divorce--not because of her marital status (e.g., not because she was married, separated, or divorced).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent's favor. DONE AND ENTERED this 4th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of May, 2017.
The Issue Whether the Respondent should be terminated from her employment with the Dade County School District.
Findings Of Fact At all times material to the allegations in this case, Petitioner was authorized by Florida law to operate the public schools within Dade County, Florida. Such authorization includes, but is not limited to, the employment, control, and supervision of non-instructional employees of the school district. At all times material to the allegations of this case, Respondent was employed as a non-instructional employee of the school district. She was classified as a specialist II and, as such, was governed by the labor contract between the Miami-Dade County Public Schools and the United Teachers of Dade (UTD). Petitioner first employed Respondent in 1992. At that time, as a part-time clerk in the Office of Grants Administration at the Satellite Parent Education Resource Center in Region III, Respondent exhibited unacceptable work performance. Respondent’s interim and overall annual evaluations for her work as a clerk at the satellite center were unsatisfactory. Throughout the 1992/1993 school year Respondent was counseled as to her deficient performance areas. Additionally, she was offered assistance and strategies for improvement, yet failed to improve her work performance. As a result of this initial employment experience, Respondent was fully apprised of the evaluation and remediation process utilized by Petitioner. When Respondent did not improve during the 1992/1993 school year she could not be recommended for full-time employment. Her last day of work for that year was April 23, 1993. Over a year later, Petitioner employed Respondent as a data-input specialist at the Coral Gables AEC. On her May 30, 1995, evaluation, Respondent was advised of several areas of work performance that needed improvement. Among the areas needing improvement were attitudes toward other staff and the public as well as the quality of her work product. The next year, school year 1995/1996, Respondent’s work performance was no better. On May 23, 1996, a conference-for- the record (CFR) was held to review the problems with Respondent’s work performance. At the May 23, 1996, CFR, in addition to reviewing the unacceptable work performance issues, Respondent was given a referral to Petitioner’s Employee Assistance Program (EAP) due to her unacceptable behavior, her mood changes, and conflicts with staff and the public. When Respondent failed to attend two conferences with the EAP, her referral was closed. Respondent requested and was granted a one-year personal leave of absence for the 1996/1997 school year. On or about May 28, 1997, Respondent returned to Coral Gables AEC and was supervised by Alonzo Kilpatrick. On October 30, 1997, Respondent received a directive to adhere to her work schedule. This directive resulted from Respondent’s record of poor attendance or punctuality. On December 12, 1997, Respondent’s mid-year evaluation rated her work performance as unsatisfactory. The areas of work performance inadequacy were fully outlined and explained. Basic areas of performance such as attendance and punctuality were deficient. Additionally, the quality of Respondent’s work was inadequate. As a result of the unsatisfactory performance, Respondent was placed on prescriptive status and issued activities to improve her work performance. This prescription outlined deadlines and specific assignments to be completed by Respondent. On January 12, 1998 a CFR was conducted to address Respondent’s interim unsatisfactory evaluation. Respondent was advised that she had failed to comply with the prescription activities. This CFR ended when Respondent became agitated and refused to participate calmly. On January 23, 1998, Respondent was notified that she had failed to complete her prescription and was directed to attend a CFR for that day to discuss the matter. When she failed to attend, Respondent was notified that failure to attend conferences would be considered insubordination. On February 20, 1998, Respondent failed to attend a conference scheduled for that date to review her prescription activities. On March 6, 1998, Respondent was given notice of a CFR that was to take place on March 12, 1998. The agenda for this CFR was to cover Respondent’s failure to complete her prescription and to attend previously scheduled CFRs. Respondent did not attend the March 12, 1998, meeting. Based upon the failure to attend, on March 24, 1998, the Respondent was given a written reprimand and notice that advised her that continuing failures to complete the prescription, failure to attend meetings, and failure to comply with administrative directives would result in disciplinary action, including dismissal. Another CFR was scheduled for April 15, 1998. Respondent was given advance, written notice of the meeting, yet failed to attend. Consequently, Respondent received a written reprimand. Such reprimand cited Respondent for gross insubordination. Further, Respondent was again directed to comply with the administrative directives given to her to attend conferences and to complete the prescription for work improvement. Respondent was given written prior notice to attend a conference scheduled for May 8, 1998. This conference was scheduled to address her continuing failure to attend conferences as well as her prescription requirements and to review Respondent’s deficient work performance. She did not attend. Respondent’s failure to attend the May 8, 1998, CFR marked the third time Respondent failed to comply with the directive to attend. Moreover, she failed to complete her prescription and failed to offer any credible excuse for having not complied with the directives of the administrator. As a result of the foregoing, Respondent was given another written reprimand outlining the failures. On May 15, 1998, Respondent received an annual evaluation that noted her work performance was unsatisfactory. She was also advised she had failed to complete her prescription for improvement and had failed to offer an explanation for why the prescription activities could not be completed. On May 28, 1998, a district level (as opposed to school level- all previous CFRs had been at the school level) CFR was held with Respondent at the School Board’s Office of Professional Standards. At that time Respondent was advised that the school administration would recommend disciplinary action against Respondent. Respondent had still not completed the prescription activities assigned to encourage remediation of work deficiencies. On June 3, 1998, Dr. Pullum, the principal at Respondent’s work site, recommended that Respondent’s employment be terminated due to her failures to follow directives, to attend CFRs, to complete prescription activities, and to improve work performance. On August 26, 1998, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and to initiate dismissal proceedings for just cause, including incompetency, gross insubordination, and willful neglect of duty.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the suspension of Respondent and dismissing her from employment with the school district. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. 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 9th day of November, 1999. COPIES FURNISHED: Luis M. Garcia, Esquire Miami-Dade County Schools 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132-1308 Theslie Sessions 1348 Northwest 95th Street, No. 301 Miami, Florida 33147 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger Cuevas, Superintendent Miami-Dade County Schools 1450 Northeast 2nd Avenue, No. 403 Miami, Florida 33132-1308
The Issue Whether Respondent committed the unlawful employment practice 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 Respondent manufactures valves for the safe transportation of hazardous chemicals on tanker-trailers. Respondent is headquartered in the Vero Beach area; specifically, the Gifford community, which is a predominately African-American community. Respondent employs a significant number of employees from the Gifford community.1/ Petitioner is an African-American male who was employed by Respondent from approximately February 2012 until his termination in September 2013. At the time of his termination, Petitioner was employed by Respondent as an assembly technician. Petitioner was supervised by Darrall Holloway, an African- American male. The incident giving rise to Petitioner’s termination involved a physical altercation between two of Respondent’s employees, Jormonte Hunter (African-American male) and Mike Alvarado (Hispanic male) on September 25, 2013. The physical altercation followed approximately two months of arguing between Mr. Hunter and Mr. Alvarado over a female employee of Respondent. Mr. Holloway and his supervisor, John Brennan (Caucasion male), learned of the ongoing dispute between Mr. Hunter and Mr. Alvarado sometime during the afternoon working hours of September 25, 2013. That same afternoon during working hours, Mr. Holloway and Mr. Brennan met with Mr. Hunter and Mr. Alvarado and told them to cease their bickering, and to avoid any future confrontations with each other, on or off company property. That same afternoon during working hours, Mr. Holloway and Mr. Brennan also met with Petitioner and two other African- American male employees (Chris Joseph and Marcus Melbourne). During this meeting, Petitioner, Mr. Joseph and Mr. Melbourne were directed not to allow the situation between Mr. Hunter and Mr. Alvarado to escalate, on or off company property. Petitioner, Mr. Joseph and Mr. Melbourne were further warned that if the situation between Mr. Hunter and Mr. Alvarado escalates, on or off company property, “actions will be taken.” Nevertheless, Petitioner, Mr. Joseph, Mr. Melbourne, Antonio Wallace (African-American male), and Mr. Hunter left work after 4:00 p.m., on September 25, 2013, and drove to Mr. Alvarado’s apartment complex. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter went to Mr. Alvarado’s apartment knowing there was going to be a physical altercation between Mr. Alvarado and Mr. Hunter. After arriving at Mr. Alvarado’s apartment complex, Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter exited their vehicles. Mr. Hunter then walked toward Mr. Alvarado’s apartment, followed by Petitioner, Mr. Joseph, Mr. Melbourne, and Mr. Wallace. Moments later, Mr. Alvarado opened his apartment door, some words were exchanged between Mr. Alvarado and Mr. Hunter, and the physical altercation ensued. Petitioner and Mr. Wallace instigated and witnessed the physical altercation, and did nothing to try and stop it. Mr. Joseph and Mr. Melbourne also witnessed the physical altercation, and did nothing to try and stop it. The physical altercation between Mr. Hunter and Mr. Alvarado lasted a matter of seconds, resulting in Mr. Hunter slamming Mr. Alvarado’s face to the ground, causing Mr. Alvarado to suffer physical injuries to his face. The next day, September 26, 2013, Mr. Alvarado arrived to work with his face badly injured as a result of the altercation. On September 26, 2013, Mr. Holloway, Mr. Brennan, and Mr. Girard, the president of the company, learned of the physical altercation that had occurred between Mr. Alvarado and Mr. Hunter at Mr. Alvarado’s apartment complex the day before. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, Mr. Hunter, and Mr. Alvarado were all suspended pending an investigation by Respondent. Over the next few days, Respondent conducted an investigation. Following its investigation, Respondent terminated Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph. Mr. Girard made the ultimate decision to terminate Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph.2/ Petitioner was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting on September 25, 2013; he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado; and he was employed by Respondent for only one year and eight months prior to his termination, during which his job performance was, at times, below expectations. Mr. Hunter was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he was directly involved in the physical altercation with Mr. Alvarado. Mr. Wallace was terminated because he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado, and he was employed by Respondent for only six months prior to his termination. Mr. Joseph was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he witnessed the physical altercation between Mr. Hunter and Mr. Alvarado. Mr. Alvarado was not terminated because he was the victim of the physical altercation, and the physical altercation occurred at his residence. Mr. Melbourne was not terminated because he did not instigate the physical confrontation between Mr. Hunter and Mr. Alvarado, and he was a long-term and model employee of Respondent prior to the September 25, 2013, incident.3/ Following his termination, Respondent replaced Petitioner with Shaunte Collins, an African-American male. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, non- discriminatory reasons having nothing to do with his race. Petitioner’s charge of race discrimination is based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for his firing are a mere pretext for intentional race discrimination.
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. DONE AND ENTERED this 17th day of December, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 17th day of December, 2014.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of an unlawful employment practice by the alleged failure to re-hire him by the Respondent because of his alleged disability.
Findings Of Fact The Petitioner was employed as a machinist operating a "pega" machine for the Respondent at times pertinent hereto, in 1992 and 1993. On or about February 24, 1992, while he was home for lunch, the Petitioner apparently suffered a stroke. He was hospitalized and his wife and a nurse informed his employer of his medical condition. The Respondent is an employer within the meaning of Chapter 760, Florida Statutes. It is a manufacturer of commercial laundry equipment and employs more than 15 employees. Because of the medical condition related to his stroke, the Petitioner applied for and was granted a medical leave of absence on or about February 24, 1992 or shortly thereafter. There is apparently some question whether the Petitioner's supervisor actually signed the leave request, but the employer does not dispute that he was legitimately on a medical leave of absence until August 13, 1992. There is also some dispute concerning whether the Respondent employer knew that the Petitioner had suffered a stroke or not. The complainant's personnel file, however, contained two notes dated March 12, 1992 and August 17, 1992 from Dr. Watts, his treating and attending physician. The March 12, 1992 note confirmed that the Petitioner had been hospitalized and had had an abnormal cerebral imaging result, also suffered from hypertension and, at that time, was unable to return to work. The August 17, 1992 note from Dr. Watts stated that the Petitioner could return to work and stated that there were no restrictions on his activities. Thus, the evidence of record indicates that there was a basis for the Respondent to know that the Petitioner had a stroke or some type of disability between February 24, 1992 and August 17, 1992. Upon his release by his attending physician on August 17, 1992, without medical restriction of his activities, so that he could return to employment, there was no basis for the Respondent to believe from that point forward that the Petitioner had any disability. This is borne out by the Petitioner's own testimony revealing that he repeatedly sought re-employment with the Respondent during the period from August 1992 through February 1993 without advising the Respondent of any employment restrictions due to his medical condition or any purported disability. When the Petitioner returned to the Respondent's place of business on August 17, 1992 and sought to come back to work after his medical leave, the plant manager informed him that he had no openings for him at that time. There were two positions being filled at that time, but they were not positions for which the Petitioner was qualified. One was a position requiring skill at electrical schematic reading, which was an electrical assembly position. The Petitioner was not qualified for this position. The other position was as a "tig welder", a highly-skilled type of welding process. The Petitioner was not qualified to perform this, as well, because of his lack of knowledge of welding. The position, and similar positions, operating "pega" machines (machine tools), which the Petitioner had filled and performed prior to his illness, were all filled and unavailable at the time the Petitioner sought to return to work in August of 1992. Neither the Petitioner nor his physician had given any indication of when the Petitioner could return to work, prior to August 13, 1992, nor was there any communication with the Petitioner or his physician for six months during his leave of absence, other than the provision to the company of the physician's note in March 1992 concerning the brief description of his medical condition. Consequently, on August 13, 1992, when Mr. Rieff, the plant manager, received a note from the Petitioner's physician stating that he could return to work without restriction, there were no positions available for his type of skill and training. Therefore, the company recorded the Petitioner's status, as of August 1992, as being discharged due to the conclusion of his medical leave with no open positions suitable for him being available. The Petitioner testified that he sought employment several times during the period of August 1992 through January 1993 by attempting to contact or contacting Mr. Rieff. He stated that Mr. Rieff told him to check with him every two or three weeks because each time he spoke with him, Mr. Rieff informed him that no openings were available at that time. The Petitioner, however, filed no application for employment until he learned, from a visit to the state employment service office in February of 1993, that the Respondent was looking for a "pega machine operator". The Petitioner filed an application with the company at that time. Upon receiving the application or learning of it, Mr. Horton, Human Resources Director of the company, reviewed it and noted that the Petitioner had had previous experience with the company performing this same job. Mr. Horton had not been with the company at the time the Petitioner had left for his medical leave and, therefore, had no knowledge of his medical history, skills, abilities, and other past history with the company. Consequently, he consulted with Mr. Rieff concerning the advisability of re-hiring the Petitioner. Mr. Rieff advised against re-hiring the Petitioner because the Petitioner had had an attendance problem while he was employed by the company. In fact, although his other job skill and performance ratings were the highest, his attendance rating was the poorest in the company's system and means of rating performance. Consequently, because of Mr. Rieff's negative recommendation, on the basis of the Petitioner's past poor attendance record, which is substantiated by the evidence, Mr. Horton elected not to re-hire him. Mr. Horton did not know at that time of the medical history of the Petitioner because the medical records were housed in a different department of the company. Mr. Horton was the decision-maker for that employment decision. The employment action which resulted in the Petitioner filing the charge of discrimination at issue occurred when the Respondent failed to hire the Petitioner. The Petitioner maintains that it was on account of his medical condition or disability. The Petitioner verbally sought employment by contacting Mr. Rieff periodically from August 1992 through January 1993. On approximately January 7, 1993, Mr. Rieff effectively told the Petitioner that he would not hire him in the foreseeable future and that if he needed the Petitioner, he could call him. In February 1993, the application was actually filed by the Petitioner for employment, and Mr. Horton took the above negative action with regard to it. It is undisputed that the Respondent granted the Petitioner six months of medical leave. Whether or not the Respondent knew of the precise nature of the medical problem for which the Petitioner was given medical leave, the fact is established that upon the Petitioner being released by his treating physician with no restrictions and able to return to work, the Petitioner had no disability in terms of any impediment to his full employment, performing the full range of duties he had performed before the medical incident occurred in February 1992. Consequently, the Petitioner was not disabled from August 13, 1992 forward. The established reason that the Petitioner was not hired again by the Respondent company was because of his poor attendance record and not because of any perceived disability suffered by the Petitioner. In fact, at the times pertinent hereto when the decision at issue was made not to re-hire the Petitioner, the Petitioner suffered from no disability, and the Respondent had no perception that he did.
Recommendation Based on 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 a Final Order be entered by the Commission on Human Relations dismissing the petition filed by the Petitioner, Dennis W. Thomas, in its entirety. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida. P. 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 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2126 The parties were accorded the opportunity to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent submitted proposed findings of fact, which are accepted (Nos. 1-6) to the extent they do not conflict with or are inconsistent with the findings of fact made by the Hearing Officer. The Petitioner submitted a post-hearing pleading, in letter form, which really amounts to an argument as to the quantity, quality and weight to be ascribed to the evidence and included citation to the relevant statute, Section 760.10, Florida Statutes, and a court case which merely is cited for the purpose of pointing out that employment cannot be denied a person on account of illness and disability. That principle is not in dispute in this proceeding. The Petitioner did not separately state proposed findings of fact which can be specifically ruled upon by the Hearing Officer. Nevertheless, all legal and factual issues alluded to in the Petitioner's pleading have been addressed and ruled upon in the body of this Recommended Order. COPIES FURNISHED: Dennis W. Thomas 4396 Clyde Lane Post Office Box 56 Marianna, Florida 32447 Roger W. Horton, III Human Resources Director Unimac Company, Inc. 3595 Industrial Park Drive Marianna, FL 32446-9458 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Anna L. Elam, was not offered employment as an elementary school teacher and was therefore discriminated against by the Respondent, Flagler County Schools, on the basis of her age.
Findings Of Fact The Petitioner filed an Amended Charge of Employment Discrimination with the Florida Commission on Human Relations (“Commission”) on February 15, 2003. The Commission investigated the amended complaint and issued a determination of no cause that discrimination had occurred. The Petitioner timely requested a formal administrative hearing and the petition was duly referred to the Division of Administrative Hearings by the Commission. Upon notice, this matter was set for formal hearing on December 18, 2003, at the Flagler County Courthouse in Bunnell, Florida. Following a Motion for Continuance filed by the Respondent, the final hearing was reset for February 17, 2004, at the same location in Bunnell, Florida. The Petitioner called and spoke with Melissa Young, assistant to Administrative Law Judge P. Michael Ruff, and to Claudia Lladó, assistant to the undersigned, to inform them that she had no legal counsel and was therefore not going to appear at the February 17, 2004, hearing. Both assistants informed the Petitioner that she should attend the hearing and inform the undersigned personally as to her intention of whether to proceed. The undersigned convened the hearing in Bunnell, Florida, on February 17, 2004. Counsel for the Respondent appeared at the hearing along with approximately five witnesses for the Respondent who intended to testify. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner appeared at the hearing or within 45 minutes of the time scheduled for the hearing, 10:00 a.m. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner submitted any evidence via deposition, sworn testimony or documentary evidence prior to, at the time of, or subsequent to the hearing on February 17, 2004. Other than the calls to the assistants to the judges, neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner has contacted the undersigned or his assistant subsequent to the hearing on February 17, 2004.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, arguments of the Respondent and the fact that the Petitioner voluntarily absented herself from the hearing, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 19th day of February, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Anna L. Elam 23 Patric Drive Palm Coast, Florida 32164 Andrew B. Thomas, Esquire 1625 Lakeside Drive Deland, Florida 32720 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was terminated from his position with Respondent as a warehouse supervisor on or about August 9, 2002, on the basis of his race (African-American), in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following Findings of Fact are determined: Respondent, Heritage Paper Company, Inc. (Respondent), is an employer as that term is defined under the Florida Civil Rights Act of 1992 (FCRA). Respondent is a wholesale distributor of paper and plastic products. Petitioner, Alonzo C. Brown, is an African-American male and is a member of a protected class. Petitioner was employed in the warehouse at Respondent's Orlando facility from 1998 until he was terminated on or about August 9, 2002. Dan Patterson ("Patterson"), who was the general manager at the Orlando facility during the relevant time period, supervised Petitioner throughout his employment with Respondent. Patterson made the decision to hire Petitioner, made the decision to promote Petitioner to warehouse supervisor, and made the decision to terminate Petitioner's employment. In November 1999, Petitioner was officially promoted from warehouseman to warehouse supervisor. Petitioner's job duties as warehouse supervisor included supervising the drivers, receiving inventory, putting away inventory, pulling orders, and ensuring that the trucks were loaded. Petitioner was responsible for assigning work to his assistants, ensuring that the runs were pulled, and ensuring that the merchandise ordered by customers was actually on the trucks for delivery. He was also responsible for the overall condition of the warehouse. Petitioner's performance deteriorated during approximately the last five months of his employment. When Petitioner got behind in the warehouse, Patterson assisted him and even hired an assistant to help Petitioner in the warehouse with inventory control and other assistance, where necessary. At the final hearing, Petitioner testified that he was discriminated against based on his race in retaliation for filing a workers' compensation claim and for disagreeing with his supervisor's instruction to put matches on a truck during a fire inspection. Petitioner was responsible for ensuring that the trucks left on time in the morning and for pulling the runs the previous afternoon. Even though an assistant was hired to help Petitioner in the warehouse at times, Petitioner refused to assign tasks to his assistant. Patterson wrote a note to Petitioner on May 1, 2002, telling Petitioner that he could not send items to the customer, NSC Northport, without matching up purchase order numbers. NCS Northport had very strict delivery requirements and would refuse delivery if Respondent did not comply with their delivery procedures. The evidence demonstrates that Patterson notified Petitioner on May 1, 2002, that Respondent's procedure with regard to NSC Northport was not followed. Although Petitioner introduced testimony that he did not write the information on the NSC Northport invoice, Patterson reasonably believed that it was Petitioner's handwriting and testified that Petitioner never informed him that he did not write the information on that invoice. Further, Marissa Moore, Petitioner's own witness, identified the handwriting as Petitioner's. When problems in the warehouse first arose, Patterson spoke with Petitioner regarding Respondent's policies and procedures for the warehouse. Patterson wrote another note to Petitioner on May 13, 2002, regarding excessive overtime and the importance of having runs pulled the previous afternoon to prevent overtime. Patterson wrote a third note to Petitioner and his assistant, Keynon Turner, on June 27, 2002, reiterating the importance of having the runs pulled in the afternoon and reminding them that the runs must be pulled by 4:00 p.m. Petitioner's explanation for the overall condition of the warehouse from May through August 2002 is not credible. Bob Purser, Sr., Respondent's chairman, CEO, and founder testified that in a conversation with Patterson, he told him that if Petitioner was unable to keep the warehouse organized, minimize the overtime, and get the trucks out on time, then they would have to get someone in the warehouse who would be able to do so. When Purser found out that incorrect merchandise was delivered to customers, he told Patterson to personally review the orders before the trucks were loaded. Purser visited the warehouse where Petitioner was employed prior to his termination and found that the warehouse was in disarray. He observed the aisles were blocked with merchandise and that the forklifts were unable to move up and down the aisles. Denis Nieves, the current warehouse supervisor for Respondent's Orlando facility, was hired on August 12, 2002, three days after Petitioner's employment was terminated. When he was hired, the warehouse was disorganized and cluttered, inventory blocked some of the aisles, the bay doors, and the exits and that it was sometimes difficult to locate inventory. It took him approximately six to eight weeks to reorganize the warehouse, unblock the aisles, put the inventory on racks, and unblock the bay doors and the exits. Respondent's Equal Employment Opportunity policy states that Respondent will provide equal employment opportunity to all qualified employees and applicants for employment regardless of race, color, sex, age, religion, national origin, handicap, marital status, and status as a disabled veteran or veterans of the Vietnam era. This policy was in effect when Petitioner was hired, and he received a copy of Respondent's employee handbook at the time of his hire, which contained the Equal Employment Opportunity policy prohibiting all types of unlawful discrimination. Petitioner knew of Respondent's Equal Employment Opportunity policy. He was aware of the procedures for mailing a complaint about racial discrimination and/or harassment. Respondent also maintained an open-door policy where employees could speak with Purser regarding any perceived problems. Petitioner was aware of this open-door policy. Other employees took advantage of Respondent's open-door policy to address their concerns with Patterson and/or Purser. Petitioner never complained to Purser about Patterson's alleged discriminatory treatment. Purser confirmed that Petitioner never addressed any concerns about race discrimination or any retaliatory actions by Patterson with him. Petitioner testified that he did not feel that he was ever discriminated against at any time during his employment with Respondent, except when Patterson terminated his employment. Although Petitioner raised various instances of perceived unfairness throughout his employment with Respondent, such as being paged to the front office and having his uniform "stripped" from him, he testified that the only point he believed he was discriminated against because of his race was when Patterson terminated his employment. Petitioner's witnesses, Ralph McDaniel and Ricky Vaughn, admitted that they never noticed any discriminatory acts or racial inequalities against anyone while they were employed with Respondent. Moore testified that she never heard any discriminatory comments about Petitioner. Andrew Mitchell testified that he never noticed any discriminatory acts during his employment with Respondent. Petitioner's only other witness, Kenyon Turner, testified that the only perceived discriminatory actions he experienced while employed at Respondent was Patterson's "getting mad and cursing [him] out every once in a while." When asked if Patterson cursed at others as well, Turner answered affirmatively stating, "[o]f course he cursed out the other people that was there," meaning all employees, regardless of race. This does not constitute evidence of racial discrimination. Purser testified that his company does not discriminate against its employees on the basis of race and Patterson testified that he did not consider Petitioner's race in making the decision to terminate his employment. Through Mitchell's testimony, Petitioner attempted to establish that he was a "good employee" and that he was a "capable and knowledgeable" warehouse supervisor, but offered no additional evidence demonstrating that he was doing a good job. The greater weight of evidence supports the fact that Patterson made the decision to terminate Petitioner's employment based on the continuing problems in the warehouse and a load factor decline of approximately 22 percent. The load factor is a percentage used to determine how many customer orders are being accurately filled. At the time of Petitioner's termination, he was earning $11.72 per hour. Petitioner testified that he did not begin looking for work until the first part of 2003. Petitioner worked sporadically for Florida Courier and that he earned approximately $11,000.00 in 2003. Petitioner did not work many hours and did not seek alternative employment during the summer months. Petitioner is also a full-time pastor, and his church pays his mortgage payment, which is approximately $1,000.00 per month. Petitioner testified that he has submitted "a couple of applications" to prospective employers, but has not really been interested in working for someone else.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alonzo C. Brown 7230 Plantain Drive Orlando, Florida 32818 Robert T. Devine, Esquire Alva L. Cross, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner is a white female born April 23, 1933. She began work as a cook for Respondent in 1982, eventually working her way up to head cook. Respondent is Mid-Florida Child Care Division, a child care facility located in Brooksville, Florida, which is part of Hernando-Sumter Head Start. Either or both entities employs in excess of fifteen full-time employees. Petitioner went into the hospital in 1989 and had a craniotomy. A cerebral aneurysm was "clipped" with resultant subarachnoid hemorrhage. In other words, her initial situation was complicated by a cerebral vascular accident (CVA or stroke) which resulted in hemiparesis on the right side and some speech impairment. Thereafter, she was off work for a period of time. At all times relevant to these proceedings, Petitioner continued to have mild problems with fine motor control of the right upper extremity, found it difficult to locate and use the correct word when she was under stress, and was unable to write or do arithmetic. She is "aphasic," which, among other definitions, refers to an individual who retains full intelligence but who has difficulty with deliverance of that intelligence at times. On August 11, 1989, James R. Cummings, M.D., a general practitioner, released Petitioner to return to work with no mention of any residual impairment in her ability to work. Dr. Joseph C. Williams, M.D., Petitioner's treating neurologist, wrote that Petitioner "can return back to work without restrictions as of 8/15/89." Due to the length of time Petitioner has been off work, Respondent did not hire Petitioner back as head cook but as an undercook. In her absence, another woman had replaced her as head cook, and Petitioner started anew as a probationer in the lower position. There is no clear evidence as to how long her probation was to last or lasted. On August 11, 1989, Dr. Cummings performed a complete examination of Petitioner on behalf of Respondent and by a September 12, 1989 form, informed Respondent that he and Dr. Williams concurred that Petitioner could return to work but "continues to have mild problems with fine motor control of R [right] upper extremity, some difficulty with word finding at times." By communication of October 16, 1989, Dr. Williams stated, in pertinent part, that: She [Petitioner] was released back to full work duties. This does not mean that the patient, at this time, is able to tolerate a full working day. It is my opinion that the patient's activities are unrestricted at work but I do feel, based on her current examination, as well as history, that she, at this point at least, is ready only for working one half day. Because Petitioner could not write and had trouble working a full day, Respondent permitted her to work only a four- hour day as an undercook. At some point after her return to work, Petitioner missed 3-5 consecutive days of work one time due to her mother's death and another time due to a second stroke/seizure. It is not clear whether she missed work of several eight-hour days or several four-hour days on those two occasions. Several employee witnesses expressed the belief that Petitioner missed several days of work on other occasions, but some of these witnesses seemed to think she was always working eight-hour days. Petitioner denied such absences or did not remember them. No contemporaneous absentee records maintained by the employer were introduced into evidence. She was not cited for absenteeism and the absences seem to have been of more concern to co-employees than to supervisors. For those reasons and because it is not clear whether Petitioner was working four or eight hours on those occasions, it is not possible to accurately determine how many hours of absences she had. Upon the foregoing evidence, it is found that Petitioner's absenteeism was not chronic and was not a source of constant concern to the Respondent's employer. On February 9, 1990, Dr. Williams notified Respondent that Petitioner was: ". . . doing extremely well after suffering a neurologic problem. At this point, I believe that the patient can return to her full duties working full time without restrictions." On March 8, 1990, Dr. Cummings wrote the Assistant Director of Mid- Florida Child Care Division, Head Start, in response to a letter inquiry of hers which is not in evidence, and stated, in pertinent part as follows: In regard to the two page job description given to me for dietary aide grade I, September 19, 1988: The patient should be able to perform all of the activities which are listed, one through twenty-one on the first page and one through thirteen on the second page. As you know Dr. Williams has given the patient a complete release to return to work, with some understanding of the basic duties of her job. From all indications from notes from Dr. Williams as well as from the speech therapist, Peggy Cockin, and from my own evaluation and questioning of the patient, she should be able to perform the above duties without major difficulty. She does occasionally have some mild difficulty with word finding and her speech is somewhat staggered, but totally appropriate and understandable. The patient gives indications to me that she has been able to perform her functions without major difficulties; that on occasion it has been difficult, but work is hard at times for anyone. Unless someone can give evidence that the patient is not functioning properly in her work setting, I see no reason that she shouldn't continue in her current occupation, based on my understanding of her current capabilities. On March 14, 1990, Dr. Williams advised Respondent's Assistant Director, Viennessee Black, in pertinent part, as follows: Constance Fiedorowicz is a patient under my care. She, at this time, is showing a very good recovery from her neurologic event. At this time I feel that Constance can perform all of the duties that you have listed. The only stipulation I would have is that the patient seems to have some difficulty with expressing herself, particularly if she becomes nervous, as well as, in writing. Otherwise, her mental faculties seem to be intact and at this point, at least based on my examinations in the office, I feel that she probably would be able to perform the other tasks that are outlined. The only way of knowing for sure would be to have the patient attempt to do the tasks and evaluate her performance of these. Petitioner testified that she was assigned the job of transporting food to the "Bypass School," a location different from her usual cooking location and that job was taken away from her upon the grounds that she allegedly had a weak leg and could not use the car brake quickly and accurately. She denied that she had any problem with a car brake. No other witness indicated any direct knowledge of why Petitioner was removed from this task, although many had "heard" she could not use the car brake pedal. In any case, she was reassigned to work in one location which apparently corresponded with her pre-handicap duties. On one occasion, while performing her kitchen tasks, Petitioner broke a cup and cut her hand. Her hand bled, but she did not know it until she saw the blood. The same was true of some nicks she made with a knife on her thumb. These incidents caused great concern to her coworkers, but not to Petitioner. The employer made no contemporaneous record of these incidents. A record was made of an incident on March 26, 1990 which occurred when Petitioner either put a dutch oven in a sink of hot water or bumped her left arm, the side unaffected by the stroke. This incident resulted in a "knot in a vein" swollen under the skin on Petitioner's left hand or forearm. The injury responded to elevation and subsided within five minutes. Petitioner continued to work. Only a bruise remained when Petitioner left early for speech therapy that same day. The employer required that some workers' compensation forms be filled out due to the March 26, 1990 incident, but none were offered in evidence. There is no evidence that Respondent had to pay workers' compensation or medical benefits to Petitioner as a result of this incident. One time, Petitioner forgot and left a knife in the freezer and another time she left a knife in among the canned goods. There was some unfocused concern by the new head cook and co-employees about sanitation on these occasions, but the employer offered no evidence to show how a knife, among intact cans of food or solidly frozen goods, could cause an unsanitary condition. Petitioner made some errors in counting lunches. The United States Department of Agriculture (U.S.D.A.) reimburses Respondent per child per meal. Petitioner's errors in counting sandwiches resulted in the Respondent not being reimbursed by the U.S.D.A. for two units at the end of one month. This was a rather serious financial loss in the opinion of the new head cook, but the actual monetary cost was never explained nor was it explained in relation to the number of children or meals the Respondent services; therefore, there is insufficient evidence upon which to find Respondent's counting error caused a substantial monetary loss to Respondent. The biggest functional problem that Respondent was able to demonstrate was that Petitioner sometimes ran dish water too hot for co-employees to use, used it herself when co-employees thought it was too hot for her, grabbed trays without gloves after being warned the trays were too hot and got burned, and grabbed one coworker too hard with her right hand instead of grabbing a pot. However, one coworker, Pinkie Bostic, who testified to most of these incidents, was of the opinion that Petitioner "could probably do the job if not around hot things like pots and water." One coworker testified that Petitioner had begun to have a personality change shortly before her stroke. However, it is not clear from this witness' testimony whether Petitioner's alleged personality problem manifested itself before the 1989 operation and CVA, which occurred while Petitioner was still head cook, or whether the alleged personality problem occurred later, just before a second stroke or seizure which occurred at some unspecified time after the Petitioner returned to employment as an undercook with Respondent (See Finding of Fact 11 supra). Petitioner and all the other employees who testified at formal hearing specified that when Petitioner returned to work after her operation and stroke she began to be difficult to get along with and it was then that she was frustrated and "touchy" in dealing with coworkers. Upon the foregoing, it is found that Petitioner's "touchiness" only began when she first evidenced aphasia after the operation/first stroke and came back to work as an undercook and that her "touchiness" continued thereafter through the second stroke/seizure. Petitioner also had at least two serious emotional outbursts about being unable to sign in or out on her timesheet and what she could do and/or was allowed to do on the job. These incidents were complicated by Petitioner's anger and frustration at not being able to adequately express herself orally when under strain. Petitioner perceived her co-employees as uncooperative with her due to their lack of understanding of her aphasia. She felt they treated her as "retarded." She testified that they intervened whenever she tried to do food preparation and cooking chores and would not allow her to complete those chores, thus making her frustrated and angry. Petitioner's co-employees testified that Petitioner had made this same complaint to them and each stated that they had offered advice as to how she should do things and had taken jobs away from her occasionally because they feared she would cut or burn herself. Petitioner also had complained to co-employees about being left by them to do only the dirty work, including but not limited to mopping up. Supervisors and Petitioner's adult daughter testified that mopping up was part of Petitioner's job description but not all of it. Tracey Ramsey, the new head cook, testified without refutation, that on some occasions, Petitioner refused to do the work that was intentionally left over for her to do because her co-employees were not talking to her. Petitioner's adult daughter and her husband observed Petitioner prepare food at home both before and after each stroke. Petitioner's husband and daughter observed that Petitioner could do her own cooking at home at all times. The daughter observed Petitioner prepare food on the job after the first stroke, and confirmed that after the first stroke, Petitioner was "protected" by Ms. Cummings, a supervisor, who would not let her do much and who would stop Petitioner from doing more complex tasks and send her to wash pots and pans instead. It is undisputed that washing pots and pans was also part of Petitioner's job description. The daughter observed that Petitioner could do her physical food preparation job but no longer could do its paperwork. On April 26, 1990, Petitioner had a three-hour conversation with Ivory J. Gray, Respondent's local director, in which Petitioner expressed her frustration on the job, asked that Ms. Gray give her another leave of absence without pay, and said she was considering quitting. Ms. Gray told Petitioner she did not have the authority to grant a further leave of absence and would have to refer the request to her own supervisor. That evening, a staff meeting was held in Lake Panakoffsky. Petitioner requested that Linda B. Blevins, Educational Consultant, read a prepared statement from Petitioner to the staff. Permission for this reading was secured from Ms. Gray, and the prepared statement was read. This document was not offered into evidence. However, upon the credible testimony of Petitioner and Ms. Blevins, it is found that regardless of others' perception of this document, Petitioner's prepared statement was meant to convey her frustration with the work situation and that she intended to "stick it out" and persevere with overcoming her disability, particularly her speech problem, and with holding her job. In the parking lot after the staff meeting, Petitioner and Ms. Gray had a conversation. Ms. Gray testified that on that occasion, Petitioner told her: "Friday will be my last day," meaning Petitioner was quitting her job. Petitioner denied that she quit. Martha Lawson testified that she overheard Petitioner tell Ms. Gray she was quitting. Petitioner's husband observed the physical location of all three women in the parking lot and testified that Martha Lawson was not even in the vicinity of the conversation between Petitioner and Ms. Gray. Respondent has consistently relied upon this conversation to show that Petitioner voluntarily quit her employment and was not fired. Regardless of what was said or understood or misunderstood in the parking lot conversation, that conversation is not determinative of this case because Petitioner orally and by all of her subsequent conduct, including reporting for work each day, evidenced her desire to retain her job, and because Respondent subsequently reacted as if Petitioner could remain employed if she were medically fit to do so. Petitioner reported to work as usual on Friday, April 27, 1990. Neither she nor any supervisor said anything about her quitting. On Monday, April 30, 1990, Petitioner again reported to work as usual. At that time, Viennessee Black was directly supervising Petitioner. Ms. Gray telephoned Ms. Black to say Petitioner had resigned. Ms. Black told Ms. Gray that the Petitioner was working there as usual. Ms. Gray then composed a memo which read in pertinent part: As per our conversation on the evening of April 26, 1990, at the Staff Meeting; you informed me that you were resigning, effective Friday, April 27, 1990. Ms. Gray presented Petitioner with the memo and asked her to sign it as a letter of resignation. Petitioner refused, asserting that she had not resigned. Respondent ceased to pay Petitioner and would not let her perform her job after April 30, 1990. Petitioner sought to continue to work. The situation became acrimonious with the Respondent employer giving consideration to psychological counseling for Petitioner with and without the participation of her co- employees. On June 15, 1990, a two hour conference was held with a psychologist, Dr. Bernard Lax, Petitioner and her husband, Ivory J. Gray, Michael Georgini, Director of Head Start, and Viennessee Black. Petitioner was again asked to provide specific information regarding her medical status, prognosis, and job analysis from her physicians and the speech pathologist. She was told that a decision would be made regarding her employment upon receipt of this information by the Head Start Program. Mr. Georgini asked to meet with Dr. Williams. Petitioner authorized the meeting. An appointment for the meeting was made for July 3, 1990. The results of this meeting, if it actually took place, are not in evidence. Petitioner thereafter submitted no further written medical assessments to Respondent. On July 3, 1990, Petitioner's speech/language pathologist wrote Mr. Georgini in pertinent part: Her speech rate is considered to be 80-90% fluent. She continues to experience some hesitations of speech when feeling "rushed" but she is fully capable of discussing almost all everyday problems or topics if given time to respond and not interrupted [sic]. She now has the foresight to know her strengths and limitations and well [sic] ask for assistance either with speech or a task. Comprehension of conversation and verbal information is well within the normal adult level. Connie continues to have difficult [sic] with writing and arithmetic calculations. Connie si [sic] fully aware of these limitations and will be the first to admit her inability to do so. This is not to say that she is not capable of using measuring device but rather would not be able to calculate a budget, or write a check, etc. She is capable of copying words and numbers without difficulty. Emotionally, Connie has had to regain her courage, confidence and self worth. She is fully aware that others around her do not understand her "Aphasia" and may acquaint this to a retardation disorder. As you know, an aphasic individual retains full intelligence but has difficulty with deliverance at times. Connie has always had a strong sense of determination and motivation. She has also learned the art of being able to laugh at herself and her mistakes. On July 23, 1990, Ms. Gray wrote Catholic Social Services saying the Respondent would not pay for counseling for Petitioner after her July 9, 1990 session.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order which: Cites the Respondent for an unlawful employment practice and orders Respondent to cease and desist such practice. Orders Respondent to pay Petitioner the equivalent of salary and all emoluments for four-hour workdays for all workdays from April 30, 1990 until Respondent re-employs her. Requires Respondent to re-employ Petitioner in a job description commensurate with her handicapped capabilities. RECOMMENDED this 22nd day of February, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 22nd day of February, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2681 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Accepted that Petitioner did not voluntarily resign. The characterizations of burdens of proof and legal arguments are rejected. Immaterial in part unproven in part. In response to specific questions of the undersigned, Petitioner replied that pay stopped 4/30/90 and she was kept off premises as of July. Accepted that Petitioner demonstrated behavioral problems prior to one stroke or seizure but not dispositive. Covered in Findings of Fact 11 and 22. Subordinate and non-dispositive, but covered in substance. Immaterial, but covered in substance. Respondent's PFOF: The "Statement of the Issues" is treated as "Proposed Findings of Fact." 1. Rejected as not proven, as legal argument, and as a different point in time than that under consideration. 2,3,4,5 Rejected as not supported by the greater weight of the record evidence and as conclusory, not a proposed finding of fact. Covered in Findings of Fact. "Findings" is also treated as "Proposed Findings of Fact". Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence. COPIES FURNISHED: Constance Fiedorowicz 460 Hale Avenue Apt. 20 Brooksville, FL 34601 Ivory J. Gray, Director Mid Florida Community Services, Inc. Post Office Box 896 Brooksville, FL 34605-0896 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of race and/or in retaliation against a protected expression.
Findings Of Fact 1. Petitioner, an African-American female, was employed by Respondent Employer for 53 days, from October 15, 2001, to December 6, 2001. 2. Respondent is an agency of the executive branch of Florida's State government, created under Chapter 20, Florida Statutes. As such, the undersigned infers that the real employer is the State of Florida, and therefore more than 15 employees work for Respondent. 3. During the whole of Petitioner's employment with Respondent she was an “other personnel services" (OPS) employee. This means that she was paid an hourly rate, for each hour worked, at a rate set by the Respondent's Division Director and the immediate supervisor, in conjunction with the budget office. Her employment fell under the "temporary" category of OPS personnel, hired to work until a specific short-term project/task was completed. There are opportunities to extend the period for which an OPS employee is hired, but there is no guarantee of extensions or of continued employment. OPS employees may be removed from the OPS payroll at any time based upon work performance, upon completion of the project/task for which employed, or for any other reason. 4. Petitioner was hired-on by Respondent at $7.00 per hour. She worked at least eight hours per day, five days per week, . 5. For approximately the first four weeks of Petitioner's employment with Respondent, Petitioner and a "white" female employee, Julia Gilbert, typed deficiency letters and answered phones. Ms. Gilbert was also an OPS employee who worked at least an eight hours per day. No evidence of Ms. Gilbert's hourly wage was presented. 6. In most instances, OPS employees are paid at the minimum of the class of career service employees whose duties are comparable. 7. Petitioner and Ms. Gilbert were performing the duties of a Regulatory Specialist I. 8. Another African-American woman, Najla Burt, had been hired in August 2001. At all times material, Ms. Burt performed the duties of an application reviewer. She was paid $10.00 per hour, to work for at least eight hours per day. She continued to be employed by Respondent as of the date of hearing. Although there was no specific testimony on this point, it may be inferred from Ms. Burt's hourly rate that she was/is classified as OPS personnel, but there is no clear evidence that as an “application reviewer" she would have fallen into the Regulatory Specialist I category. 9. Mr. Everett Thompson, an African-American male, hired Ms. Burt and claimed to have hired Petitioner. Petitioner denied that Mr. thompson hired her, but conceded that she reported to him as her immediate superior and to Shirley Rodgers, a "white" female, who was a higher level superior, and that Mr. Thompson fired Petitioner on December 6, 2001.?/ 10. Petitioner's perception was that Mr. Thompson terminated her because he is "prejudiced" and that he discriminated against her as an African-American when he terminated her without also terminating the "white" employee, Ms. Gilbert. 11. Aside from her termination being without warning, Petitioner's offered proof of Mr. Thompson's racial prejudice revolves around an office party. Petitioner, Mr. Thompson, Ms. Burt, and other employees were present. Everyone present was African-American except for two employees whose race is not of record. The undersigned infers, from the evidence as a whole, that these two employees were "white." Mr. Thompson testified that, as a joke, and to avoid eating chocolate cake, which he dislikes, he said, "I don't eat anything darker than me." He testified that he felt his "joke" was acceptable due to the predominance of African-American employees at the gathering. Petitioner and Ms. Burt heard Mr. Thompson's remark differently. Their testimony is consistent on this issue and more credible, to the effect that, in fact, Mr. Thompson said, "I don’t like anything that is blacker than me or eat anything that is blacker than me." 12. There is no evidence to support a finding that Petitioner is a darker- or lighter-skinned African-American than Mr. Thompson. */ 13. With regard to the allegations of disparate treatment of Petitioner and Ms. Gilbert, Petitioner, Ms. Burt, and Mr. Copeland testified that Ms. Gilbert and Petitioner were assigned to answer phone inquiries and Ms. Gilbert repeatedly unplugged her phone to avoid this duty. Petitioner and Ms. Burt testified that Mr. Thompson and Ms. Rodgers held a Meeting of all office personnel and announced that anyone unplugging his or her phone in order to avoid having to answer it would be automatically terminated, and that Ms. Gilbert was not terminated for unplugging her phone or for not answering it, even when Ms. Gilbert again unplugged her telephone after the departmental warning. 14. Mr. Thompson's testimony is credible that several employees, in addition to Petitioner, reported to him that Ms. Gilbert was unplugging her phone but that when he approached Ms. Gilbert about the problem, Ms. Gilbert told him that she had not unplugged her phone. He further testified credibly that when he personally checked Ms. Gilbert's phone, he determined that it was, in fact, plugged-in, and that as a result, he had believed Ms. Gilbert over the other employees. Mr. Thompson also testified that, in the interests of resolving the issue and as a management technique, he went so far as to announce in a meeting with all employees that if anyone did unplug his or her phone, that person would be reprimanded. I accept Mr. Thompson's foregoing testimony as credible, except that Petitioner and her witnesses are more credible to the limited effect that Mr. Thompson and Ms. Rodgers together made a blanket threat of automatic termination, not just reprimand, of anyone found to have unplugged his or her telephone. 15. Ms. Gilbert was not terminated for unplugging her phone or for not answering one. No one testified that Petitioner was terminated for unplugging a telephone or for not answering one. 16. Petitioner also maintained that she was terminated in retaliation for asking Ms. Rodgers why she, Petitioner, was not being paid $10.00 per hour, which Petitioner understood was base pay for her position if she had been a permanent career service employee. However, all Petitioner was able to relate on this issue was that Ms. Rodgers had told her "all OPS employees make the same hourly rate," and Petitioner knew this was not so. Ms. Burt apparently escorted Petitioner to Ms. Rodgers' office and Petitioner told her on the way what she intended to say to Ms. Rodgers, but neither Ms. Burt nor any other witness was in the room during Petitioner's and Ms. Rodgers' conversation. Petitioner apparently had no other direct dealings with Ms. Rodgers after this conversation and was not terminated until two weeks after this conversation. Petitioner was terminated by Mr. Thompson, not by Ms. Rodgers. 17. Mr. Thompson denied that race had anything to do with terminating Petitioner. He related that he had received oral complaints about Petitioner's work from processors. None of these complaints was formalized in writing or placed in Petitioner's personnel file. Mr. Thompson privately corrected Petitioner for misspellings and other typographical errors she made typing deficiency letters during her first four weeks. He also privately corrected Ms. Gilbert for the same sort of spelling and typographical errors, but he also determined that Ms. Gilbert was making far fewer errors than Petitioner. He further determined that Petitioner's deficiency letters were not being done as fast as Ms. Gilbert's letters. He required that each woman correctly re-type her own work. 18. After approximately four weeks, Mr. Thompson moved Petitioner to a data-entry position which required less skill. After approximately two more weeks, he found that Petitioner also was neither fast enough nor accurate enough in her new duties to suit him. Mr. Thompson felt he had no obligation to explain his motivations or reasons for termination to OPS personnel, and he simply fired Petitioner. 19. Mr. Thompson admitted that on two occasions, Petitioner had asked him why she was not earning $10.00 per hour just after he had given her instructions to perform duties appropriate to her project/task. Mr. Thompson was not the immediate superior designated by the employer to set OPS salaries so Petitioner's pay inquiries irritated him, but he testified that he did not retaliate with termination as a result of her pay inquiries. It was Petitioner's overall attitude which was objectionable to him, not just her inquiries about pay. He related that whenever he asked Petitioner to answer the phone, she asked why she had to answer the phone instead of his assigning the task to another similarly-situated employee and that once he justified that order, Petitioner would then immediately ask him if she and the other similarly~-situated employee could take turns answering the phone. This type of negotiation was Petitioner's response to many of his instructions. Petitioner never directly refused an order from him, but Mr. Thompson resented her attitude in never simply complying with his orders as her supervisor and her turning his every instruction into a negotiation. 20. Petitioner testified that she was doing her job well; received compliments from her two superiors; and got no prior warning she would be terminated. Ms. Burt testified that Petitioner was performing her job duties and responsibilities "to the best of her ability" when she was fired. Mr. Keyon Copeland, an African-American male OPS co-worker, testified that Petitioner was performing her job well and worked through lunch and coffee breaks and worked after regular hours to help other employees but she was then fired without warning. He felt "the situation was not handled right." However, neither Ms. Burt nor Mr. Copeland was a superior of Petitioner or of Ms. Gilbert. Neither of them was ever called upon to formally evaluate Petitioner's or Ms. Gilbert's job skills or performance for the employer. Neither Ms. Burt nor Mr. Copeland claimed to have any experience or expertise in employee performance evaluations. Their evidence was essentially anecdotal. 21. Mr. Thompson has held supervisory positions for many years and has evaluated many employees. He credibly denied that race had anything to do with his decision to fire Petitioner. Upon the evidence as a whole, most Particularly the fact that Mr. Thompson is an African-American and he did not terminate other African-Americans including Ms. Burt and mr. Copeland, it is found that mr. Thompson's perception of Petitioner was that she alone had an attitude problem and that this perception, coupled with his assessment that her job performance was not adequate, motivated him to terminate Petitioner. 10
Conclusions For Petitioner: Michele M. Young, pro Se , 1732 Augustine Place Tallahassee, Florida 32301 For Respondent: Michael Wheeler, Esquire, Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
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 Charge of Discrimination and Petition for Relief. DONE AND ENTERED this Lt day of July, 2003, in Tallahassee, Leon County, Florida. 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 day of July 2003.
The Issue The issue is whether Respondent, Pritesh, Inc., d/b/a IHOP 36-151 ("IHOP"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2011),1/ by discharging Petitioner from her employment in retaliation for her complaints regarding racial and religious discrimination in the workplace.
Findings Of Fact IHOP is an employer as that term is defined in subsection 760.02(7), Florida Statutes. IHOP is a restaurant in Leesburg. IHOP is owned by Pritesh Patel, who owns and operates a total of four International House of Pancakes stores in the Leesburg area through his corporation, Pritesh, Inc. Petitioner is a black female who is an observant Jew. Because of her religious beliefs, Petitioner does not work on the Sabbath, from sundown on Friday until sunset on Saturday. Petitioner was hired to work as a server at IHOP on March 19, 2012. She made it clear that she did not work on the Sabbath, and IHOP agreed to respect her religious beliefs. There was some difference in recollection as to the notice Petitioner gave to IHOP. Petitioner testified that she made it clear she could not work until sundown on Saturdays. The store manager, Brian Jackson, also recalled that Petitioner stated she could only work Saturday evenings. Mr. Patel testified that Petitioner said that she could work on Saturday "afternoon." Petitioner's version is credited as being more consistent with her stated beliefs, though there is no doubt that Mr. Patel was testifying honestly as to his recollection. Petitioner was the only black server working at IHOP at this time. Both Mr. Patel and Mr. Jackson credibly testified that IHOP has had many black servers through the years. Mr. Jackson noted that Petitioner only worked for IHOP for a period of two weeks and therefore was in no position to judge IHOP's minority hiring practices. Petitioner testified that assistant manager Hemanshu "Shu" Patel, a relative of the owner, created a hostile working environment for her from the time she started on March 19. She complained that Shu would alter the seating chart so that she would have fewer tables to cover, meaning a reduction in her tips. Petitioner also stated that Shu was disrespectful and rude, in a manner that caused her to believe there was a racial motivation behind his actions. Despite the fact that Shu was subordinate to Mr. Jackson, Petitioner believed that Shu was really in charge because he was a relative of Mr. Patel and therefore "untouchable" as an employee of IHOP. Petitioner's main complaint was that Shu, who was in charge of work schedules for the restaurant, scheduled her to work on Saturdays. Petitioner testified that on the first Saturday of her employment, March 24, Shu called her to come into work at noon. She replied that she could not come in until after sundown. This problem was apparently worked out to Petitioner's satisfaction, and she was not required to report to work on Saturday afternoon. However, when Shu posted the next week's schedule on the following Tuesday, Petitioner saw that she had been scheduled to work on the morning of Saturday, March 31. Petitioner complained. Both Mr. Patel and Mr. Jackson testified that Shu had merely made an error in scheduling that was rectified as soon as Petitioner notified them of the problem. Petitioner did not deny that the problem was resolved mid-week, well before any Sabbath conflict could arise. Mr. Patel testified that he wanted Petitioner to work from 4 p.m. until midnight on Saturday, March 31, so that she would not lose a day's work due to the scheduling error. Shu phoned Petitioner early on Saturday afternoon and asked her to come in. Petitioner told Shu that she could not come in until 8 p.m. Mr. Patel testified that he did not need someone to work a four-hour shift, and that Petitioner was told not to come in. As a further reason for declining to work on Saturday evening, Petitioner testified that she had only been trained for the morning shift. Mr. Jackson testified that the only distinction between the dayshift and the nightshift is that the latter is less busy. All servers are trained for the morning shift. Mr. Jackson stated that, once trained for the morning shift, a server would find the night shift "a piece of cake." Petitioner's reason for not working in the evening was not credible in this respect. Mr. Patel testified that he had no problem with Petitioner's not working on that Saturday, provided that she understood she was going lose a day. Mr. Patel stated that from his point of view the problems began when Petitioner insisted that he give her weekday hours to make up for the lost Saturday hours. Mr. Patel declined to cut another employee's hours for Petitioner. Petitioner came in to work on the morning of Sunday, April 1. Sunday morning is a busy time for IHOP. According to head server Bernadine Hengst, Petitioner stood near her at the register and voiced her complaints about Shu, who was working in the kitchen. Shu heard Petitioner and stepped into the dining room, asking her, "You got something to say to me?" Petitioner and Shu became loud, and their argument was moved outside for fear of disturbing a restaurant full of people. Petitioner finished her shift then went home and composed a letter to Mr. Patel. She made copies of the letter for every employee at IHOP. Ms. Hengst was the first to see the letter. She phoned Mr. Jackson at home to tell him about it, and Mr. Jackson phoned Mr. Patel. The letter read as follows: On March 19, 2012, I was hired to work as a server. I am a professional, pleasant, respectful, prompt and dutiful individual. As the only African-American server, it is imperative that you know since I have arrived at IHOP, I have faced fierce blatant hostility from a manager ("Shu") and co- workers ("C.C., Misti and Cherish"). I feel Shu has deliberately created a divisive and hostile working environment. It is my understanding Shu is a family member yet his behavior is definitely bad for business. On two separate occasions, Shu altered the seating chart that Brian originally created and took two tables from me. He lacks proficient management skills and is totally unprofessional, disrespectful and rude. On Sunday, April 1, 2012, Shu spoke to me in a loud, impolite manner in front of staff and customers. Shu communicated in a very bellicose fashion and for a moment, it felt as though he would physically attack me. You must take it serious that Shu's conduct is detrimental to your business. When Shu hired me I made it clear that I am Jewish and do not work on the Sabbath ("Saturday"). Nevertheless, Shu called me to come into work on Saturday about noon; I told him I would come in after the Sabbath at 7:00 p.m. The following week I was scheduled to work a Saturday, which in turn caused me to lose a day of work. Also on April 1, 2012, Shu assigned me only two booths for the whole day; when I spoke up about it he threatened to take another booth from me. This type of attitude and his unfair behavior cannot be tolerated in the United States of America in 2012. Shu is outwardly mean, discriminative, and racist towards me. He acts like a tyrant, a bully and he feels he is untouchable. On Sunday, April 1, I was only assigned two booths while my co-workers had four to six tables. This was unfair seating arrangements. At the end of the day, Bernie [Hengst] told all the servers to tip out the busboy, yet I did not because I was unjustly treated by only being assigned two tables. This was one-sided and insulting. I am an exceptional waitress and I depend on this job to pay my bills. During my first week, I was scheduled to work 36.10 hours and this week I was only given approximately 23.0 hours. Everyone should be treated fairly and equally. I ask that you continue to give me a full schedule each week. This letter officially informs you of the battles I have dealt with in your establishment and I have not worked here for one whole month. All Americans have the right to work without being harassed. I urge you to intervene and equitably resolve this issue. Ms. Hengst testified that Shu is a loud person who "talks with his hands," but she saw nothing that gave her the impression that Shu would "physically attack" Petitioner. She did not detect that Shu treated Petitioner any differently than he treated other servers. Ms. Hengst saw Petitioner as an equal participant in the April 1 confrontation. As to Petitioner's complaint about the number of tables to which she was assigned, Mr. Jackson testified that servers are always trained on two booths and then moved to four booths after training is completed. He stated that Petitioner was doing a "terrible" job working four booths, which caused Shu to move her down to two. Mr. Jackson stated that it is counterproductive to overwhelm a new server, and that the server must demonstrate the ability to perform the basics before taking on more tables. On the morning of April 2, after reading Petitioner's letter, Mr. Patel went to the IHOP and sat down for a meeting with Petitioner in hopes of addressing her complaints. Mr. Patel testified that the first thing Petitioner asked him was, "Do you know how many black employees you have?" Though he had been willing to discuss Petitioner's grievances concerning scheduling, Mr. Patel decided to fire Petitioner when she started "threatening us" based on claims of "black and white discriminating." He decided to fire Petitioner for the future of his business, because he did not want the problems associated with allegations of discrimination. Mr. Jackson was also at the April 2 meeting, and testified that Petitioner claimed she was being singled out because of her race. Based on all the testimony, it is found that Petitioner had little basis for claiming that IHOP was discriminating against her based on her race or religion during the actual course of her job. She was mistakenly scheduled to work on Saturday, but was not required to come in to the store once she made management aware of the error. She did lose one shift's worth of work for March 31, but that was partly due to her declining to work the evening shift. The evidence established that Shu Patel was loud, somewhat hotheaded, and perhaps not the ideal choice for managing a busy restaurant, but did not establish that he singled out Petitioner for particular abuse because of her race or religion. The evidence established that Petitioner's poor job performance was the cause of at least some of the friction between her and IHOP management. However, Mr. Patel's own testimony established that he dismissed Petitioner in direct retaliation for her complaint of discriminatory employment practices. IHOP offered no legitimate, nondiscriminatory reason for Petitioner's dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Pritesh, Inc., d/b/a IHOP 36- 151 committed an act of unlawful retaliation against Petitioner. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner. DONE AND ENTERED this 5th day of March, 2013, 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 5th day of March, 2013.
