The Issue The issues are whether Respondent, City of Edgewater (the City), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on her age, gender, and/or disability by the manner in which the City terminated Petitioner’s employment. Also at issue is whether Petitioner’s termination was in retaliation for Petitioner’s complaints regarding discriminatory conduct by her immediate superior.
Findings Of Fact The City is an employer as that term is defined in section 760.02(7), Florida Statutes. Petitioner is a white female who was over the age of 40 during the events relevant to this proceeding. Petitioner was hired by the City as a part-time animal control officer on June 9, 1993. At the time Petitioner was hired, animal control was part of the City’s police department. On October 15, 1993, Petitioner was transferred to a full-time position as records clerk/telecommunicator in the police department. Petitioner maintained the department’s records and answered all police calls, including 911 calls. She dispatched officers and emergency personnel. Petitioner testified that this was a desk job with no real physical requirements beyond walking to a window to deal with members of the public. She received excellent evaluations and stayed in this position until early 1999. While working this job, Petitioner obtained police training at Daytona State College. Upon graduation, Petitioner applied for a job as a police officer with the City. On February 19, 1999, the City hired Petitioner as a police officer. Petitioner was promoted to sergeant on May 7, 2006, and served in that position until her demotion following an altercation with a female detainee in the City’s holding facility on June 16, 2011. Petitioner was continuously employed by the City for 18 years and eight months. During her employment, she received regular pay increases and numerous commendations. Over the years, she received three written warnings and one demotion, from sergeant to officer after the incident on June 16, 2011. Chief of Police David Arcieri characterized her disciplinary record as good in light of Petitioner’s length of service. During the course of her employment, Petitioner had multiple health problems. In 2001, during work-related mountain bike training, Petitioner suffered a fall that badly injured her shoulder.3/ Petitioner had surgery and recalled that she missed at least four months of work. When she came back to work, Petitioner was unable to perform the normal duties of a police officer. She was allowed to return in a light-duty desk position, working with the City’s chief of grants. She worked in this position for approximately six months before returning to regular duty as a police officer. In 2004, Petitioner was diagnosed with lupus and rheumatoid arthritis (“RA”). Petitioner testified that she freely discussed her condition with her co-workers because of the problems she had establishing a medication regime that did not cause allergic reactions. Until late 2011, she was forced to give herself painful injections in the stomach. She now has a port implanted that allows her to take the medications via infusion. Chief Arcieri confirmed that it was common knowledge in the City’s police force that Petitioner had lupus. Petitioner testified that she missed very little work because of the lupus and RA. She requested no accommodations in the workplace for these conditions. Sometime in 2009, Petitioner underwent neck surgery to repair a disc “that was almost gone.” Petitioner recalled discussing her condition with then-Sergeant Arcieri4/ prior to the surgery. They talked about the fact that her doctors were unsure whether the neck condition had been brought on by her RA. Petitioner testified that she was out of work for two or three months due to this surgery, but did not require a light-duty assignment when she reported back to her position. On September 22, 2009, Petitioner was at work conducting a witness interview when her nose began bleeding uncontrollably. A fellow officer drove her to the emergency room. Another city employee came to the emergency room to make sure Petitioner got home safely. At the hospital, Petitioner was diagnosed with hypertension. She missed several days of work and was placed on medications to control her blood pressure. City Manager Tracey Barlow testified that he was contemporaneously aware of Petitioner’s hypertension. Petitioner requested no workplace accommodations for her hypertension. In early 2010, Petitioner was out of work for a time with uncontrolled vomiting and diarrhea. Petitioner’s physician, Dr. Beatrice Bratu, diagnosed her condition as stress-induced colitis. Petitioner testified that her treatments for the colitis lasted about three months but that she was back at work within a few weeks. On March 15, 2010, Personnel Director Donna Looney addressed the following email to Petitioner: We are very pleased to see you back and doing well! I am in receipt of a note from Dr. Bratu which indicated you may return to work. I want to stress that we understand the necessity for you to follow your doctor’s instructions. No restrictions are noted; therefore you are allowed to continue your regular duties. Please be advised that you have a continuing obligation not to work when you are feeling impaired (fatigue, weakness, pain, etc.). It is City policy that if you expect to have any adverse side effect while taking medication, you must inform your supervisor, and you are never to drive a City vehicle when you are feeling impaired. If I can be of any further assistance, please feel free to contact me. Petitioner requested no workplace accommodation related to her colitis. On June 16, 2011, Petitioner was involved in an altercation with a 28-year-old female detainee at the City police station. Several officers submitted witness statements about the incident and police station video cameras captured the essentials of the acts that occurred. The video recording did not include sound. The detainee, J.G., had been arrested for battery and was by all accounts heavily intoxicated and belligerent. J.G. asked to go to the bathroom. Petitioner let her out of the cell and escorted her to the bathroom. The video shows Petitioner standing in the open doorway of the bathroom, waiting for J.G. to finish. Petitioner told the police department’s internal affairs investigator that J.G. asked for tampons. Petitioner responded that the police department did not keep such items and that she would have to clean up as best she could with the materials available in the bathroom. J.G. replied that she could not put back on the shorts she had been wearing. She stated they were not her shorts and they were bloody. Petitioner told her that she had to put the shorts back on. At this point, the video shows the shorts flying out of the bathroom and landing behind Petitioner, who kicked them back into the bathroom and stepped into the doorway. J.G., stepping into camera range, picked up the shorts and threw them at Petitioner. The shorts hit Petitioner along her beltline. Petitioner took a step forward and struck J.G. in the face with her open right hand. J.G. pushed forward momentarily, but retreated into the bathroom as Petitioner continued to advance. At this point, Officer Eric Selvaggio entered the picture to assist. For a period of roughly forty seconds, all three people were inside the bathroom, invisible to the camera. The doors then opened, and the three emerged. The two police officers guided the handcuffed J.G. toward a point outside the range of the camera. J.G. wore only a shirt and underwear. The video next cut to an empty holding cell. Petitioner and Officer Selvaggio entered the picture, guiding the handcuffed J.G. toward the cell. J.G. continued to struggle with the officers. She dropped to the ground. The officers pulled her to her feet and pushed her into the cell. J.G. kicked at Petitioner. The camera angle made it impossible to see whether there was contact, but Petitioner stated at the time, and has consistently maintained since the incident, that J.G. kicked her in the stomach. Immediately after the kick, Petitioner attempted to push her way past Officer Selvaggio toward J.G. Petitioner drew back her right fist but Officer Selvaggio’s left arm blocked her from throwing a punch. He pushed Petitioner away and then secured J.G. in the holding cell. Though there is no sound on the video, it is clear that Petitioner and J.G. continued an animated conversation after J.G. was locked in the cell. Multiple police witnesses recalled Petitioner calling J.G. a “fucking bitch.” Petitioner and the other officers on duty went out the back door to discuss the situation. The video appears to show Petitioner performing a joking reenactment of her attempted punch at J.G. Officer Selvaggio stated to the investigator that Petitioner told him she might not charge J.G. for the incident, but he replied that under the circumstances it would be best if she did follow through with charges. Petitioner filled out a charging affidavit against J.G., charging her with battery on a law enforcement officer, in violation of section 784.07(2)(b), Florida Statutes. In her charging affidavit, Petitioner wrote as follows, in relevant part, verbatim: On June 16, 2011 at approximately 12:45 a.m., the defendant, [J.G.] was in police custody at the Edgewater Police Department on a battery charge from a previous police call. The defendant requested to use the bathroom and was escorted to the bathroom by me. The defendant was upset over being arrested, while sitting on the toilet, she kicked off her shorts and threw them out of the restroom stating that she was not putting them back on as they were not hers and were soiled from her menstrual cycle. I pushed the shorts back into the restroom with my foot and advised her she needed to put them back on, she screamed she was not going to. When the defendant rose from the toilet, she picked up the shorts and threw them directly into my face, striking me with the shorts. The defendant then pushed herself up against the sink and began calling me a bitch and telling me again she was not putting the shorts back on and she was leaving. I entered and attempted to get her out of the bathroom, she began to punch at me. Myself and Officer Selvaggio, who was standing nearby, grabbed hold of the defendant in an effort to get her out of the bathroom. The defendant struggled against us, before we got her to the floor and secured her. As we were getting her back into the cell, the defendant threw herself onto the bench and kicked out striking me in the stomach with her right foot. The defendant was left in the cell with no shorts on and in handcuffs . . . . It should be noted that Petitioner’s charging affidavit states that J.G. hit her in the face with the bloody shorts, when in fact the shorts hit Petitioner in the waist area. Petitioner failed to mention that she slapped J.G. in the bathroom or that Petitioner attempted to punch J.G. in the holding cell. Chief Arcieri testified that when he came in later that morning, he reviewed all of the reports filed since the previous day. Petitioner’s report caught his eye because it involved battery on a law enforcement officer inside the station house. He instructed his assistant to pull the video of the incident and make one copy for him and one for Petitioner. When he saw the video, Chief Arcieri notified the Florida Department of Law Enforcement (“FDLE”) and requested an investigation. Chief Arcieri testified that he went to FDLE because he thought criminal charges could ensue in the case and that he does not like to investigate criminal matters internally. He also ordered an internal affairs investigation, but placed it on hold pending the outcome of the FDLE investigation. On June 21, 2011, Petitioner was placed on paid administrative leave for the duration of the investigations. J.G. refused to cooperate with the FDLE investigators. Without a victim willing to go forward, no criminal charges could be brought against Petitioner. The FDLE investigation was dropped. The internal affairs investigation was completed on August 15, 2011. The investigator’s written report concluded as follows: Sgt. Winston did commit the act of perjury on an official felony charging affidavit. Sgt. Winston did in fact using her hand strike a prisoner in the face which caused her to fall back onto the sink. Sgt. Winston did reach her right arm over the shoulder of Officer Selvaggio in an attempt to strike a handcuffed prisoner which Officer Selvaggio was attempting to secure inside the holding cell. Sgt. Winston did violate Edgewater Police [sic] & Procedure by removing a prisoner, removing the prisoner’s handcuffs without another officer present and allowed the prisoner to use the restroom. Sgt. Winston violated Edgewater Policy & Procedure by entering the cell/booking area wearing both her issued side arm as well as her issued taser. Sgt. Winston violated Edgewater Police [sic] & Procedure by openly criticizing the policy of securing any and all weapons prior to entering the booking/cell area when prisoners are present. This was done openly in the presence of fellow officers. Sgt. Winston violated City Policy and Procedure 12.02 Inappropriate/Unacceptable Behavior. Sgt. Winston did violate Edgewater Police Department Policy & Procedure Excessive force not resulting in injury. Petitioner was represented by counsel for the Fraternal Order of Police (“FOP”) in defending herself against the allegations that resulted from the internal affairs investigation. Negotiations ensued between the City and Petitioner to resolve the matter short of litigation. A settlement agreement was reached and executed on August 24, 2011. Petitioner agreed to findings that some of the allegations were sustained.5/ Petitioner agreed to a demotion from sergeant to officer, effective August 19, 2011, with a resulting salary cut, and she agreed to attend anger management courses. On August 24, 2011, Chief Arcieri ordered Petitioner to report for duty at 6:00 a.m. the following morning. Petitioner called in sick and did not report for work on August 25, 2011. Ms. Looney, the personnel director, contacted Petitioner to find out why she was not reporting for work. Petitioner told Ms. Looney that she had sustained a back injury during the altercation with J.G. on June 16, 2011. Ms. Looney testified that this was the first she knew of Petitioner’s back injury. In a letter dated August 24, 2011, and received by Chief Arcieri on August 25, 2011, Petitioner’s personal workers’ compensation attorney wrote as follows, in relevant part: As you know, Ms. Winston is an 18 year employee with our [sic] agency who was recently in an altercation with a belligerent, drunken female on June 16, 2011. Ms. Winston was injured during the arrest but was placed on Administrative leave pending an internal investigation and the matter has not been reported as an injury as of yet. Ms. Winston was not aware that she had injured her low back immediately due to circumstances surrounding the altercation and the typical adrenaline response resulting from such an altercation. She thought she was just sore from being beat up a bit but as the weeks went by her condition worsened. A recent MRI has revealed two herniated discs in the lower back and Ms. Winston does require medical treatment for this work related injury. I am requesting at this time that the Agency immediately file a First Report of injury on behalf of Ms. Winston. This should be considered notice under Chapter 440 of the work related injury. In addition to the back injury, Ms. Winston now suffers from uncontrolled high blood pressure which is also disabling. Ms. Winston will be receiving a letter from her doctor indicating that she is unable to work due to her uncontrolled blood pressure at this juncture. That is also a work related claim under F.S. 112.18, more popularly known as the “Heart/Lung Bill.” This claim should also be processed and medical care should be provided as soon as possible. Please see that a First Report of Injury is completed with regard to this claim . . . . In a related claim, Ms. Winston also has a September 22, 2009 uncontrolled hypertension incident which resulted in hospitalization. As you know, the 2009 accident occurred while Ms. Winston was interviewing a sex crime victim. She was experiencing a severe headache and then had an uncontrollable nose bleed during the interview. The blood pressure reading at the time revealed her blood pressure was severely elevated and she was taken to the hospital. This incident should have triggered the immediate filing of a First Report of Injury under F.S. 112.18 as referenced above. For whatever reason, no First Report of Injury was filed but I am requesting that you file such a First Report of Injury immediately on Ms. Winston’s behalf and that you provide appropriate medical care for this condition . . . . Finally, Ms. Winston advises me that she has been under an internal investigation since the June, 2011 incident. This internal investigation appears to be entirely inappropriate given the circumstances surrounding this event and would appear to be part of an intimidation practice on the part of your Agency, which is in clear violation of F.S. 440.205. As I am sure you know, 440.205 prohibits the harassment, intimidation, retaliation, or termination of an employee by virtue of a workers’ compensation claim. Needless to say, Ms. Winston has numerous ongoing workers’ compensation claims and it appears that all of the harassment which she has been subjected to since the time the internal investigation was opened in this matter appears to be directly attributable to her ongoing workers’ compensation issues. It should also be noted that Ms. Winston is suffering from post traumatic stress disorder as a result of this recent altercation and all of the fallout related to same. As I am sure you are well aware, post traumatic stress disorder of this nature is also covered for First Responders under the auspices of F.S. 112.1815. I am requesting again that a First Report of Injury be filed relative to this issue and that appropriate medical care be provided. Ms. Winston is entitled to full pay as she was injured during an altercation with a violent individual. Full pay is appropriate pursuant to the provisions of F.S. 440.15(11). This means that she should be receiving a regular paycheck without deduction of sick or vacation bank time. Please see that the appropriate adjustment is made relative to payment of benefits and feel free to contact me with any question . . . . On August 30, 2011, Petitioner submitted three “Incident/Accident Information Forms” to the City in regard to her workers’ compensation claims. The first states that Petitioner suffered an injury to her lower back on June 16, 2011, when “an intoxicated combative prisoner . . . kicked me in my stomach just above my gun belt.” The second describes “stress” as the injury, dated June 28, 2011, caused by “constant harassment & belittled by Dave Arcieri.” The third form states that the date of injury was September 22, 2009, the injury was “blood pressure caused bleeding of the nose,” and describes the incident in terms similar to those used in the attorney’s letter of June 24, 2011. Petitioner testified that she still sees a psychiatrist once a month and goes to counseling every two weeks, but that she first sought mental health counseling in June 2011 because of problems with Chief Arcieri that dated from long before he became chief. She testified that “he would cuss me out, call me names, have people that were subordinates watching me and reporting back to him to make sure I didn’t breathe the wrong way.” Petitioner testified that Chief Arcieri’s animus toward her dated from her handling of a situation as a sergeant that led to the firing of an officer. A member of Petitioner’s squad reported to her that an officer in another squad stole property from a civilian during a traffic stop and then gave him the stolen item. Petitioner told the officer to file a report and drop the item into evidence and that she would meet with the other officer’s sergeant. The other officer’s sergeant required him to write a report. The officer lied in the report. Petitioner and the other sergeant brought the matter to the attention of their superiors. After an investigation, the department had no choice but to fire the officer. At a sergeants’ meeting a little while later, then- Administrative Sergeant Arcieri said that Petitioner was incompetent. If she had handled the situation differently, Sergeant Arcieri would not have had to fire a good officer. Petitioner asked how the department could tolerate a lying thief in its midst. Sergeant Arcieri told her that the officer could have been reprimanded in some other way. Petitioner testified that she was afraid of Chief Arcieri because of threats he made to her. He made it clear to her and to any other officer who thought about reporting something to Ms. Looney or Mr. Barlow that these officials would let him know and the snitch would pay a price. On September 27, 2011, Petitioner sent an email to Michelle Grenham, Chief Arcieri’s secretary, stating that she would be unable to attend the anger management class required by the settlement agreement because she was undergoing major surgery on September 28 at Halifax Hospital in Daytona Beach. Ms. Grenham forwarded the email to Chief Arcieri and Ms. Looney. Petitioner underwent surgery on September 28, 2011, to repair the herniated discs in her back. Petitioner testified that prior to the surgery, she had difficulty walking, standing, bending at the waist, reaching, and climbing stairs due to the pain in her back. She was able to drive a car but only for short distances. She did not have full control of her bladder and bowels. She could only sleep by putting herself in a fetal position then bracing herself with pillows to keep her in that position. Petitioner described the surgery as less than a complete success. She had numbness in her right leg, was unable to bend, squat, kneel or stretch, and could not sit for very long. She eventually required spinal injections and the surgical insertion of a morphine pump in her stomach for pain in her spine. The morphine pump was still in place at the time of the hearing. Physicians also implanted a spinal cord stimulator in her back. She regained control of her excretory functions but was unable to walk without the use of a walker for several months and a cane thereafter. She wore a back brace most of the time. On November 29, 2011, Petitioner and her husband met with Mr. Barlow and Ms. Looney to discuss Petitioner’s medical situation and when she might return to work. The meeting was held at Petitioner’s request. Petitioner testified that she came into the meeting wearing a back brace and using a walker. Her husband had to drive her to the meeting. Petitioner testified that she asked for the meeting to find out if she could get an extended leave until her physician cleared her to go back to work. She also wanted to discuss Chief Arcieri’s harassment and belittling of her. At the meeting, Petitioner told Mr. Barlow that she didn’t know how long the healing process would take or whether she would need additional surgeries. Petitioner testified that Mr. Barlow told her it might be in her best interest to retire, in light of her age and her many health problems, including RA, lupus, hypertension, and now the back injury. Mr. Barlow stated that it seemed to him that Petitioner didn’t have anything that was going to go away, and that anyone with a back injury would have issues with it for life. Mr. Barlow asked whether Petitioner really thought she could ever come back as a police officer. Petitioner could only say that she didn’t know. Petitioner testified that she told Mr. Barlow that she hoped to reach retirement as a police officer but that she was willing to take another position with the City if her physical limitations kept her from returning to her former position. Petitioner testified that she told Mr. Barlow that she had a doctor’s appointment on May 3, 2012, and that Mr. Barlow promised to give her a leave of absence until that appointment. Petitioner’s husband, Ricky Winston, testified that at the meeting, his wife explained her injuries to Mr. Barlow and complained about Chief Arcieri’s constant ridicule and badgering. Mr. Winston stated that Mr. Barlow had a calendar and some paper and a calculator that he was using to diligently figure out something. It turned out that Mr. Barlow was calculating the date of Petitioner’s full retirement, with the idea of carrying her on the City’s employment roster until then. Mr. Winston testified that he left the meeting with the understanding that Mr. Barlow had agreed to grant Petitioner unpaid leave until she reached retirement. Mr. Winston recalled that Mr. Barlow listed all of Petitioner’s physical problems and asked why she didn’t just quit. Mr. Winston testified that this question was devastating to his wife because she never had any intention of leaving the job she loved. Ms. Looney testified that she did not recall Mr. Barlow mentioning any of Petitioner’s physical infirmities aside from her back injury. She did not recall Mr. Barlow using a calculator or calendar during the meeting or stating a date for Petitioner’s retirement. Ms. Looney stated that the goal was for Petitioner to return from her next doctor’s appointment with a physician’s statement as to when she could return to work, whether at full or light duty. Ms. Looney’s assumption, based on Petitioner’s condition, was that Petitioner would return to light duty at first. Mr. Barlow explicitly stated that the City wanted Petitioner to return to work, either full or light duty. Ms. Looney testified that she believed everyone at the meeting understood that Petitioner wanted to return to light duty and that the police department would try to find light duty restricted work for Petitioner when her doctor cleared her to return. Petitioner would remain on unpaid leave until her next doctor’s appointment in January 2012, at which time the City would need to know whether she could return to work. Petitioner had given Ms. Looney light duty notes from physicians in the past, which led Ms. Looney to assume that Petitioner understood what she needed to provide to the City. Ms. Looney stated that Mr. Barlow did not promise to keep Petitioner’s job open until May 2012. Mr. Barlow recalled almost nothing about the November 29, 2011, meeting with Petitioner. The only relevant specific testimony he provided on the subject was a denial that he told Petitioner that she could have a leave of absence until May 2012. However, given his lack of recall as to anything else that transpired in the meeting, Mr. Barlow’s testimony on this single point is not credited. The testimony of Petitioner and her husband regarding the statements made at the November 29, 2011, meeting is credited as to Mr. Barlow’s discussing Petitioner’s retirement and as to the fact that a discussion of Chief Arcieri’s behavior toward Petitioner occurred. On these points, Petitioner and Mr. Winston were credible, consistent witnesses. Ms. Looney’s testimony on these points was confused and equivocal. Mr. Barlow’s testimony was of little use at all as he claimed to remember virtually nothing about the meeting. However, the testimony of Petitioner and her husband cannot be credited as to the matter of Mr. Barlow’s promise to give Petitioner a leave of absence until May 3, 2012. Even disregarding Mr. Barlow’s convenient memory on this point, Petitioner’s testimony and that of her husband diverged on the ground for the leave of absence. Petitioner testified that Mr. Barlow gave her until May 3, 2012, because that was the date of her next doctor’s appointment. Mr. Winston vaguely recalled that a date was mentioned, either March or May, and that this date was based on Mr. Barlow’s calculation of Petitioner’s retirement date. Petitioner’s claim that Mr. Barlow gave her until May 2012 is further undercut by documentary evidence. On January 26, 2012, Petitioner sent Ms. Looney an email that stated as follows, in relevant part: Call me when you get the chance, I have prescriptions to pick up and get fitted for another brace, but I am going to need to take a leave of absence for a bit. Dr. Vinas [Petitioner’s surgeon] is not releasing me for duty at this time . . ., I will be going into a new brace and will be going to pain management for epidural injections in my spine. I have attached the letter from Dr. Vinas, as well as a copy of the medications I will be taking. My next appointment with him will be May 03/2012 unless the Dr. at the pain management center feels I need further surgery. I have no idea what to do about taking a leave, is there paperwork I need to file or just send you a letter? I would rather speak to you so if you are not busy please call me . . . . If the November 29, 2011, meeting had settled the question regarding Petitioner’s leave of absence until her doctor’s appointment on May 3, 2012, there would have been no need for Petitioner to write to Ms. Looney on January 26, 2012, to request a leave of absence and to inform Ms. Looney that her next doctor’s appointment would be on May 3. This email is consistent with the assertion made in the City’s February 21, 2012, letter terminating Petitioner’s employment that Mr. Barlow agreed to maintain the status quo until January 23, 2012, the date of Petitioner’s next scheduled doctor’s appointment.6/ In an email to Ms. Looney dated February 9, 2012, Petitioner stated, “[A]t this stage nothing surprises me anymore, I mean after all, I was supposed to be back on my feet and rarin to go by January, well that, as you know did not happen.” Petitioner closed a separate February 9, 2012, email to Ms. Looney with the following: “I forwarded this to [Mr. Barlow] also, but if he does not get it please let him know and tell him I said to keep his chin up as he always does and thank him for allowing me to take a leave of absence. Hopefully it won’t be much longer.” These emails cast further doubt on Petitioner’s claim that she had obtained a leave of absence until May 3, 2012, from Mr. Barlow at the November 29, 2011, meeting. The greater weight of the evidence indicates that Petitioner was granted an unpaid leave of absence at the November 29 meeting, but only until her physician cleared her to return to work in some capacity, which Petitioner at the time anticipated would occur in January 2012. The evidence presented at the hearing showed that Petitioner had used her twelve weeks of leave under the Family Medical Leave Act (“FMLA”) as of November 16, 2011. She had exhausted all of her accrued leave as of December 9, 2011, when she formally began the unpaid leave of absence. On January 1, 2012, Petitioner began receiving the City’s long-term disability benefits. Ms. Looney signed a letter to Dr. Federico Vinas, dated January 25, 2012, that stated as follows: Ms. Winston has informed us she is a patient of yours. She has a follow-up appointment January 26, 2012 in association with surgery perform [sic] by you. First, and foremost, enclosed you will find the Authorization to Disclose Medical Information form executed by Ms. Winston along with her job description (Police Officer) setting out the physical requirement. JoAnne is a valued City employee and it would be greatly appreciated if you verify her ability to perform any or all of these duties. Please provide us with specific restrictions or requirements necessary not to aggravate her condition and advise as to exactly when she can be cleared for full police officer’s duties. Your expertise is [sic] this matter is greatly appreciated. Please contact me for any further information you may need. The City’s job description for “Police Officer” reads as follows, in relevant part: PRIMARY DUTIES AND RESPONSIBILITIES: (all duties may not be performed by all incumbents) Patrols designated area of the City to preserve the peace, to prevent and discover criminal acts, and to enforce traffic regulations. Answers calls and complaints involving drunkenness, domestic disputes, assaults and batteries, missing persons, fires, thefts, accidents and other felonies and misdemeanors. Is responsible for being knowledgeable of the crime problem in assigned work area and developing strategies to combat the problem. Develop contacts and provide intelligence reports to detectives and administration. Makes preliminary investigations at crime scenes or incidents, protects and collects physical evidence, locates witnesses, interviews witnesses, makes arrests, assists paramedics with basic and advance [sic] life support. Interviews complaints [sic] and witnesses to obtain information about crimes; assists in investigative work. Prepares evidence for issuance of complaints and testifies as a witness in both civil and criminal court, transports prisoners. Patrols school zones and high activity areas when assigned. Assists motorists, directs traffic, investigates accidents, recovers stolen automobiles, prepares detailed reports, advise of and interpret laws and ordinances and provides general information to the public. Cooperates and coordinates with other law enforcement agencies and other components of the Criminal Justice System. * * * Environmental Conditions: Outdoor environment with exposure to discomforting and dangerous working conditions Office environment with exposure to computer operations Physical exertion in lifting/moving items weighing up to 50 pounds Routine travel is required along daily assigned routes Occasional overnight travel is required Other physical/mental requirements may apply * * * DISCLAIMER STATEMENT This job description is not intended as complete listing of job duties. The incumbent is responsible for the performance of other related duties as assigned/required. The physical demands described herein are representative of those that must be met to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable qualified individuals with disabilities to perform the essential functions. On January 26, 2012, Dr. Vinas forwarded to Ms. Looney a “Work Status” form regarding Petitioner that provided as follows: The above captioned patient is being treated in this office. The patient’s current work status is as follows: ( ) This patient was seen for treatment in our office today, please excuse any absence from work or school. (X) Based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time. Restrictions The patient may return to or continue to work with the following restrictions: ( ) No lifting over pounds. ( ) No excessive/repetitive bending or twisting. ( ) No prolonged sitting/standing or stooping. ( ) No excessive/repetitive pulling or pushing. ( ) No excessive activity with arms above shoulder level/overhead activity. ( ) ALL OF THE ABOVE ( ) Specific instructions ( ) This patient does not work at this time, but has been instructed to limit household/daily activities so as to remain within the above noted restrictions. ( ) This patient’s most recent evaluation supports a return to normal, routine work activities. The effective date of this Work Status is from the date noted above until further notice. If the patient’s current position of employment can be modified or other position found that conforms to the above restrictions, then the patient may return to work. If these restrictions cannot be maintained, I would recommend that the patient be excused from work until further notice. The patient’s work status will be evaluated on a visit-to-visit basis. Ms. Looney testified that based on Dr. Vinas’ Work Status form and her own conversations with Petitioner, she concluded that Petitioner was unable to return to work in any capacity, full or light duty, as of January 26, 2012. At the hearing, Petitioner conceded that she could not have returned to work as a police officer on January 26, 2012. As set forth in Finding of Fact 54, supra, Petitioner notified Ms. Looney via email on January 26 that her next appointment with Dr. Vinas would be on May 3, 2012. In the same email, Petitioner asked for guidance on how to request a further leave of absence. The record of this proceeding includes a “Request for Leave of Absence” form in which Petitioner asked for a leave of absence commencing on January 26, 2012, with an “anticipated return date” of May 3, 2012. At the hearing, Petitioner could not recall filling out this form. In her testimony, Ms. Looney indicated that she filled out the form for Petitioner. In the space in which the applicant is to set forth reasons for the leave of absence, Ms. Looney wrote, “See attached e-mail,” which was Petitioner’s January 26 email to Ms. Looney. Mr. Barlow denied the request for a further leave of absence by signature on the request form. The form does not indicate when Ms. Looney filled it out or when Mr. Barlow denied the request. The record is also unclear as to when Petitioner was notified that the City was denying her a further leave of absence. As late as February 9, 2012, Petitioner was still sending chatty emails to Ms. Looney regarding her medical condition and treatment, even asking Ms. Looney and Mr. Barlow to stop by her house for a visit if they are ever in the neighborhood. The first clear notice of the denial was in the termination letter set forth in the next paragraph. On February 21, 2012, Ms. Looney wrote the following letter to Petitioner: On November 29, 2011 Tracey Barlow, City Manager, and myself met with you to discuss your medical situation. You informed us your next doctor’s appointment was January 23, 2012, at which time you were hoping to be taken out of your brace. We agreed your continued employment with the City would depend on your returning to full duty and I would send Dr. Vinas a letter requesting exactly when you would be cleared to return to full duty as a police officer. Following your exam on January 26, 2012, you emailed me Dr. Vinas’ work status form which states “based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time.” You also stated your next appointment is May 3, 2012 and asked about taking a leave of absence. JoAnne, as you are aware your FMLA was met as of November 16, 2011; all your workers compensation claims have been denied;7/ you exhausted all of your accruals as of December 9, 2011 and have been granted unpaid leave of absence for the previous 74 days, and as of January 1, 2012 you began receiving the city’s long term disability benefit. Therefore, due to all the facts stated too [sic] include uncertain ability to return to work date, the City Manager has denied your request for leave of absence exceeding 30 days. As a result, consider this formal notification that your employment with the City of Edgewater ends effective February 24, 2012. It is very important that you contact the Personnel Department to make the necessary arrangements for your continued insurance coverage and any outstanding benefits/obligations you have with the City. Petitioner testified that at the time the City terminated her employment, she was still using a cane at home and a walker when she went out. There is no question that Petitioner was unable to return to full duty as a police officer on February 24, 2012. It was Petitioner’s contention that she could have come back to work for the police department in some form of light duty, as she had been allowed to do in the past, or in one of several jobs that the City advertised as open during her convalescence. Petitioner further contended that Ms. Looney should have sent Dr. Vinas the job descriptions of all open City jobs rather than just the job description of a police officer. As to the last point, Ms. Looney testified that it was standard practice for the City to send the physician an employee’s current job description for an assessment of the employee’s ability to return to work. Petitioner was treated no differently than any other City employee in this regard. Petitioner testified that she asked the City to bring her back in another position, but could offer no documentary evidence to support that testimony. She claimed that part of the discussion at the November 29 meeting with Mr. Barlow and Ms. Looney was her hope to retire as a police officer, but her desire to remain a city employee in whatever capacity she could. Ms. Looney testified that Petitioner never asked to work in any position other than that of police officer. Petitioner sent an email to Ms. Looney on December 26, 2011, asking whether Ms. Looney had “heard from my Dr. as to when I might be able to come back light duty or anything else?” Petitioner claims that the “anything else” portion of the email indicated her desire to be placed in any available job. Ms. Looney read the email as merely asking whether she had heard from Petitioner’s doctor, not as a job request. Ms. Looney’s reading is not unreasonable given that this was the only document Petitioner produced that even arguably contained a statement asking to be placed in a position other than police officer. In any event, whether Petitioner asked to be placed in another position is not decisive because of the blanket statement in Dr. Vinas’ work status form. Ms. Looney testified that she was unable to place Petitioner in any position because Petitioner’s physician had clearly stated that it was in her best interest to be excused from all work duties. It was always the City’s understanding that Petitioner would return to work in a light duty function at first, but in fact Petitioner was not cleared to work at all. Ms. Looney might have followed up with Dr. Vinas and inquired whether Petitioner was capable of doing clerical work or some other form of indoor, deskbound job, but Petitioner has pointed to nothing that required Ms. Looney to do so in light of Petitioner’s failure to request that accommodation. Ms. Looney testified that it was the City’s practice to hold off on discussing positions outside of an employee’s department until the employee has actually been cleared for light duty. No evidence was presented that the City treated Petitioner any differently than it treated other employees in a similar position. Similarly, Mr. Barlow might have agreed to extend Petitioner’s unpaid leave of absence to May 3, 2012, but he was not required to do so. At the time of her termination, Petitioner had used twelve weeks of FMLA leave and had been granted an additional 74 days of unpaid leave at Mr. Barlow’s discretion. Petitioner had been out on some form of medical leave for approximately six months. The City did not seize on some early opportunity to dismiss Petitioner; rather, the City had anticipated that Petitioner would return to work as a police officer and waited until Petitioner had exhausted all avenues of leave except a second discretionary unpaid leave of absence before deciding to terminate her employment. Petitioner offered no credible evidence that her termination was based on her age, gender, disability or perceived disability or that she was treated differently than other employees due to her age, gender, or disability. The lone indication of possible bias was Mr. Barlow’s statement at the November 29, 2011, meeting that Petitioner should consider retirement in light of her age and poor health. This statement may be easily read as a kindly (if poorly phrased) expression of concern for Petitioner. By her own testimony, Petitioner was on good terms with Mr. Barlow and Ms. Looney right up to the time of her termination. Petitioner sent solicitous emails to them as late as February 9, 2012. Petitioner’s feelings were hurt by the statement, but no other ill effect followed. She was granted the requested unpaid leave of absence and remained employed by the City for three more months. Petitioner testified that she never considered herself disabled and prided herself on not calling in sick or requesting accommodations for her conditions. Ms. Looney, Mr. Barlow, and Chief Arcieri all testified that they did not perceive Petitioner as having a disability that required accommodation in the workplace, though they were all aware of at least some of her chronic conditions such as lupus, RA, and hypertension. Petitioner claimed that Chief Arcieri carried on something of a vendetta against her. Chief Arcieri testified that prior to the demotion his relationship with Petitioner was friendly. When Petitioner’s house was flooded, Chief Arcieri took off work to help Mr. Winston solder a broken shower valve. After Petitioner was demoted, the relationship was less friendly but always professional. Chief Arcieri testified that he has never yelled at Petitioner or any other employee. He never called her names. The harassment and belittling that Petitioner alleged never happened. Chief Arcieri denied any sort of gender bias, pointing to the successful efforts his department has made to recruit and hire female officers. He denied ever making a comment about Petitioner’s age. He testified that he never considered Petitioner disabled while she was on active duty, despite her lupus. Petitioner never requested an accommodation and Chief Arcieri never saw the need for an accommodation. Chief Arcieri testified that at the close of the internal affairs investigation of the June 16, 2011, incident, he declined to sustain some of the allegations in order to protect Petitioner from a referral to the Criminal Justice Standards and Training Commission (“Commission”) for further discipline. Chief Arcieri assented to a request by the FOP that he submit a letter to the Commission stating that he believed the demotion was sufficient and asking the Commission not to take further action against Petitioner. Petitioner’s testimony against Chief Arcieri consisted of general statements that he harassed and belittled her. The only specific incident Petitioner recounted as to the source of any possible animus the chief bore toward her involved the firing of the officer who stole something during a traffic stop. Even if Petitioner’s version of events is accepted, Chief Arcieri’s anger toward Petitioner had nothing to do with her age, gender, or disability. He called her “incompetent.” He was upset about the manner in which Petitioner performed her job, which he believed led to the needless dismissal of a good officer. Whether Chief Arcieri was right or wrong to be angry at Petitioner, he did not engage in an act of discrimination. Even if the factfinder were to accept Petitioner’s description of Chief Arcieri as a bully on the job, there is no evidence aside from Petitioner’s general comments to indicate that she was singled out due to her age, gender or disability. It is telling that in testifying about her fear of reporting the bullying, Petitioner stated, “I was afraid. I was very afraid. David Arcieri made it not only clear to me, but to any other officer who even thought about going to report to Donna Looney or to Tracey Barlow, ‘Don’t worry, they’ll let me know and you will pay the price.’” This statement might be evidence that Chief Arcieri is a bully, a poor leader of his department, or a bad administrator. However, the statement does not establish that Chief Arcieri discriminated against Petitioner in a manner prohibited by section 760.10, Florida Statutes. If anything, the statement indicates that Petitioner found herself in the same boat as the other officers in her department.8/ Petitioner was aware of and understood the City’s nondiscrimination and no-harassment policy, the operative language of which states: The nature of some discrimination and harassment makes it virtually impossible to detect unless someone reports the discrimination or harassment. THUS, IF ANY EMPLOYEE BELIEVES THAT HE OR SHE OR ANY OTHER EMPLOYEE IS BEING SUBJECTED TO ANY OF THESE FORMS OF DISCRIMINATION OR HARRASSMENT, HE OR SHE MUST REPORT THIS TO THE PERSONNEL DIRECTOR (386-424-2408) AND/OR CITY MANAGER (386-424-2404). If you are encountering a problem, please do not assume that the City is aware of it. The City is committed to ensuring that you have a pleasant working environment, and your assistance in bringing your complaints and concerns to our attention is a necessary first step. (Emphasis in original). The policy was included in the City’s personnel manual. Petitioner was provided with copies of the policy and amendments thereto several times during her tenure with the City. Petitioner conceded that, notwithstanding the policy, she did not report any incidents of harassment or discrimination to either Ms. Looney or Mr. Barlow while she was actively working for the City. The allegations of intimidation and harassment made by Petitioner’s attorney in his August 24, 2011, letter and Petitioner’s allegation of “constant harassment and belittlement by Dave Arcieri” in her workers’ compensation incident report were made only after Petitioner had been off the job for eight weeks. Further, the specific allegations made by Petitioner’s attorney claimed that the City was in violation of section 440.205, Florida Statutes, not that Chief Arcieri or any other City employee was discriminating against or harassing Petitioner because of her age, gender, disability, or perceived disability. The evidence produced at the hearing established that Petitioner sustained an injury to her back, most likely due to an altercation with a detainee on June 16, 2011, that necessitated surgery and a rehabilitation process that was not complete even at the time of the hearing in May 2014. The City carried Petitioner as an employee until all of her available leave had been used and then for another 74 days on an unpaid leave of absence. The City had no legal obligation to grant Petitioner an unpaid leave of absence but did so in the hope that Petitioner would be able to return to work in January 2012. As of the termination date of February 24, 2012, Petitioner had been away from her job for more than six months, had not been cleared by a physician to do work of any kind, and would not receive a physician’s clearance to work any sooner than May 3, 2012. The City could have consented to carry Petitioner even longer on an unpaid leave of absence, but it was not discriminatory for the City to make the business decision to terminate Petitioner’s employment. Petitioner offered insufficient credible evidence to refute the legitimate, non-discriminatory reason given by the City for the termination of her employment. Petitioner offered insufficient credible evidence that the City's stated reason for the termination of her employment was a pretext for discrimination based on her age, gender, disability, or perceived disability. Petitioner offered insufficient credible evidence that the City discriminated against her because of her age, gender, disability, or perceived disability in violation of section 760.10, Florida Statutes. Petitioner offered insufficient credible evidence that her dismissal from employment was in retaliation for any complaint of discriminatory employment practices that she made while an employee of the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Edgewater did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 30th day of January, 2015, 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 30th day of January, 2015.
The Issue The issue is whether Respondent is guilty of discrimination in employment based on Petitioner's pregnancy and sexual harassment, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Respondent is a family-owned business engaged in the retail sales of wine, spirits, cigars, specialty gourmet foods, and party favors. Respondent operates about 28 stores, mostly in south Florida. Respondent employs at least 225 employees. Its chief executive officer is Paul (Bubba) Kassal. Other executive officers, superior to Bubba Kassal, are his brother Michael, who also serves as vice-president of personnel, and their father, who, with his father, started the company in 1955. Respondent hired Petitioner on October 13, 2003, as a human resources manager. As such, Petitioner reported to the human resources director. At the time of hiring Petitioner, Bubba Kassal informed her, presumably secretly, of his intent to fire the existing human resources director. Six months later, after the termination of the human resources director, Respondent promoted Petitioner to the position. As human resources director, Petitioner's primary duties were to ensure that all of Respondent's employees were paid, file all reports with the appropriate agencies, prepare internal employment policies, train managers in good hiring practices, run background checks, ensure compliance with all safety, workers' compensation and Family Medical Leave Act (FMLA) issues, terminate employees, counsel employees, file unemployment compensation reports, and participate in the strategic planning for new stores. The Kassals were satisfied with Petitioner's work performance during her entire employment with Respondent. Respondent's main offices are located in Ft. Lauderdale. While working for Respondent, Petitioner commuted over one hour each day from her home in Port St. Lucie to her office in the corporate headquarters. The issues in this case divide neatly into the claims of a hostile work environment and sex discrimination due to pregnancy. The claim of a hostile work environment pertains to Petitioner's first two years with Respondent, which were from late 2003 through late 2005. The claim of discrimination due to pregnancy pertains to Petitioner's last months with Respondent, which were from spring 2008 through fall 2008. As noted below, there is evidence supportive of a claim of a hostile work environment, although this evidence fails to establish such a claim for the reasons explained below. However, the limited evidence of a hostile work environment is in no way linked to the termination of Petitioner's employment in 2008 while she was pregnant. This termination, which was due to complications associated with her pregnancy, was essentially by mutual agreement and in no way was due to some form of quid pro quo sex discrimination or retaliation for her failure to reciprocate Michael Kassal's flirtation or infatuation. Petitioner's version of events for 2003-05 is credited because Michael Kassal did not testify. Petitioner's version of events for 2008 is largely uncredited due to some inconsistencies in her testimony where she implies, for instance, that she understood that Respondent might not keep open her existing job until after she delivered. Petitioner's version of events for 2008 is less than the more plausible testimony of Bubba Kassal and Respondent's outside counsel, Amy Galloway. Shortly after starting work, Petitioner began receiving unwelcome attention from Michael Kassal, whose office was near Petitioner's office. Michael Kassal, who was married at all material times, routinely complimented Petitioner's hairstyle, teeth, shoes, and clothes. When Respondent sponsored a wine tasting at its Port St. Lucie store, Michael Kassal invited Petitioner to attend. Michael Kassal repeatedly asked Petitioner to lunch or dinner. Petitioner went to lunch with Michael Kassal only a couple of times because she was uncomfortable with the level of attention that she was receiving. During her first year of employment, Petitioner was preoccupied with the demands of her job and largely ignored the uninvited attention that Michael Kassal directed toward her. During her second year of employment, Petitioner initiated corporate-wide training sessions in sexual harassment. She used these occasions to remind Michael Kassal, when he made her uncomfortable with his comments or behavior, that he knew better and he needed to stop such inappropriate behavior. Undeterred, Michael Kassal instead confided in Petitioner that he felt trapped in his marriage, could not leave his wife due to their two children, and believed that he would have been much happier if he had met Petitioner a couple of years earlier because they would have been so good together. Michael Kassal said that his wife, who was, at times, an employee of Respondent, was an alcoholic. Petitioner suggested that Michael Kassal or his wife take advantage of Respondent's employee assistance program. Michael Kassal rejected this advice and instead stated that, if Petitioner would not go out with him, he would go out with a woman at the gym where he worked out. On Petitioner's birthday, Michael Kassal routinely gave her a card. Petitioner kept only two of the cards and could not identify the years that they were received. One card contains a handwritten note: "And I need you more than want you[,] and I want you til the end of all time." Michael Kassal printed his name at the bottom of the note, adding a heart- shaped symbol in place of the dot over the "i." The other birthday card states: Dear Angella, It[']s presently July 10th and you are in India and I am wishing I were with you riding on Elephants and protecting you from the dangers so far from home. I must tell you we all miss you and only have kind thoughts about how professionally you have with us with Cami and Johanna. You have always blessed us with organization and administrative magic. I sit here and count the days before I can smell Victor[i]a's Secret Rapture perfume. Thank you for your intervention. You have been a breath of fresh air. I know it[']s been a whirlwind to some of us to catch up but it[']s worth the effort. I always have your back. I hope this year[']s birthday brings happiness and fills your heart with songs and sunshine. I hope you get a new pair of shoes and a toothbrush. Thanks again for all your loyalty and dedication. Sincerely, Michael Kassal. The "i" in "Michael" bears no dot or other symbol. Bubba Kassal testified that Michael sent birthday cards to all of the employees of the company and that this was part of the family atmosphere that characterizes the company, which continues a tradition of family picnics, employee fitness programs, and comprehensive fringe benefits. Bubba Kassal also testified that he and his brother kiss each morning. However, Bubba Kassal did not testify that the contents of the birthday cards quoted above resemble the contents of the birthday cards that Michael Kassal sends to, say, the company truck drivers or warehouse workers. The thoughtfulness that Michael Kassal extends daily to his brother and annually to his employees is distinct from the intimacies inherent in the shorter birthday card and the reference to smelling Petitioner's perfume again. These intimacies corroborate the portion of Petitioner's testimony that describes an inappropriate level of emotional attachment from Michael Kassal toward Petitioner; the inference easily follows that this level of emotional attachment is atypical of the conventional employer-employee relationship at Respondent. Three omissions loom large in Petitioner's proof of her claim of a hostile work environment. These omissions are considered in ascending order of significance. First, at no time during her employment with Respondent did Petitioner complain to anyone about Michael Kassal's behavior. She testified that she believed a complaint would be futile because Michael Kassal was the boss. Respondent countered with evidence that complaints about Michael Kassal's wife led to her termination and argument that Petitioner's complaints would likewise have received a fair hearing. Respondent's contention overlooks the fact that Michael's wife was convicted of driving under the influence, and her continued operation of a company vehicle presented an insurance problem for Respondent that could not be ignored. Petitioner is right on this point--her complaint would have been futile. Bubba Kassal was not in a position to control his brother, and, on this record, their father does not seem to have been playing a prominent role in the business during the time in question. Factually, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes undermine the credibility of the complainant. This is not the situation here, though, because, as noted above, Petitioner's version of events from 2003-05 is unrebutted and confirmed by two birthday cards. Legally, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes preclude a finding of notice to the employer, so as to preclude a conclusion of vicarious liability. This is not the situation here, though, because, as discussed in the Conclusions of Law, Michael Kassal was Respondent for purpose of establishing notice and concluding vicarious liability for his behavior. The second omission is that nothing in the record establishes that the behavior of Michael Kassal impeded Petitioner's work performance. As discussed in the Conclusions of Law, this omission is not outcome-determinative, but, as noted above, Petitioner's work was always satisfactory, at least until her health deteriorated during her pregnancy, which is discussed below. The third omission is that the evidence fails to establish that Michael Kassal continued to lavish inappropriate attention on Petitioner after the end of 2005. The record is silent as to the nature of the relationship between Michael Kassal and Petitioner for the two and one-half years from the end of 2005 until the disclosure of her pregnancy in the spring of 2008. It is at least as plausible that, unfueled by any encouragement from Petitioner, Michael Kassal's infatuation with her tapered off after a couple of years, rather than burned with the same intensity for four and one-half years. The behavior of Michael Kassal from late 2003 through late 2005 suggests nothing more than an infatuation with Petitioner, which, however inappropriate, excludes the sexually charged actions of offensive touching or sexually explicit invitations or comments. The behavior in this case is limited to unaccepted invitations to lunch, dinner, and dates, inappropriate revelations about Michael Kassal's personal life, and transparent attempts at flattery that, at their best, suggest a failure to recognize boundaries and, at their worst, wander between the narcissistic and infantile. The record is not especially rich in detailing Petitioner's response to the inappropriate attention lavished on her by Michael Kassal, except that there is no indication whatsoever that Petitioner welcomed the attention, reciprocated in any fashion, or was in any way flattered by Michael Kassal's two-year infatuation. There is some evidence that the attention made Petitioner embarrassed and somewhat uncomfortable, but this evidence is insufficient to establish that Petitioner's subjective reaction took the form of a feeling that she was physically threatened or personally humiliated or that she was laboring under an alteration of her working conditions. Such reactions, if they had occurred, would have been disproportionate to the level of attention that Michael Kassal directed toward Petitioner. Except for the frequency of comments about attire or appearance, which may have occurred on a daily basis, the record fails to establish the frequency of the invitations to lunch, dinner, and dates or the inappropriate revelations about Michael Kassal's personal life, but these occurrences were probably infrequent. Objectively considered, none of Michael Kassal's behavior was physically threatening or humiliating, none of his behavior was so pervasive or severe as to alter the conditions of Petitioner's employment, and none of his behavior could reasonably have adversely affected Petitioner's work performance. Based on these findings and the Conclusions of Law below, Petitioner has failed to prove a hostile work environment from 2003-05. The inception of the claims arising out of Respondent's treatment of her pregnancy is March or April 2008, when Petitioner learned that she was pregnant and due to deliver in November. In June, Petitioner decided to reveal her pregnancy to family, friends, and Respondent. On the morning that Petitioner had decided to inform Respondent of her pregnancy, the first person who came to her office was Bubba Kassal. He congratulated Petitioner, laughingly saying, in a manner that did not offend Petitioner, that he did not know that she had a boyfriend. Bubba Kassal then spoke of his two boys and added that he was sorry that Petitioner's mother was no longer alive to support her at this time. Bubba Kassal called his mother and told her, and she called Petitioner the next day and congratulated her. The record does not disclose whether Petitioner told Michael Kassal at this time, or, if she did, the nature of his response. A short while later, on June 13, Petitioner had an office visit with her physician, who became concerned about her high blood pressure. The physician asked if Petitioner could work at home, and Petitioner assured him that she could. The physician wrote a note to this effect. Driving back to the office, Petitioner called Ms. Galloway, with whom Petitioner had worked on human-resource issues. Petitioner told Ms. Galloway about her pregnancy, the health risks, and the support that she had already received from "the Kassals." Ms. Galloway advised Petitioner just to go in and tell them that she needed to work at home. Toward this end, Petitioner arranged a meeting with Michael and Bubba Kassal on June 18. At the meeting, Petitioner gave the Kassals a copy of her physician's note. Petitioner acknowledged that she had been with Respondent a long time, and she thanked them for the work that she had been allowed to do. She mentioned her pregnancy complications, which included blacking out and falling--these made the long drive between work and home especially dangerous. Petitioner offered to recruit someone to replace her, but she wanted to be kept on the payroll in return for performing various human resource duties as best as she could, mostly from home. Michael Kassal reacted to the request poorly. He replied that it had not been his idea to purchase a house so far from the office in Port St. Lucie, and the human resources director needed to be onsite. Notwithstanding Michael Kassal's reaction, Respondent accepted Petitioner's request, as Bubba Kassal and Petitioner generally agreed to an arrangement in which Petitioner would continue to be paid her normal salary through delivery in return for working on human resources matters on a limited basis. An important component of the understanding reached at the June 18 meeting was its term, which was through the birth of the baby. Bubba Kassal asked what would happen if, after baby was born, Petitioner decided not to return to work. Petitioner was unable to promise that she would return to work, but replied that she needed to work, and she could bring her aunt from Jamaica to watch the baby. Bubba Kassal asked when the work-at- home arrangement would go into effect, and Petitioner replied it was intended to go into effect right away, but she would try to work with them and offered to help find someone to perform her duties in her absence. Bubba Kassal replied that he had someone in mind. Petitioner herself testified that Bubba Kassal asked what would happen if they liked the replacement, and Petitioner replied that she understood that they had a business to run, implying that, consistent with this understanding, they might not have a position for her after the baby were born, just as she might not want to return to work with Respondent. Bubba Kassal promised to memorialize the understandings reached at the meeting. Despite the doctor's orders, Petitioner continued to report to the office until the July 4 weekend. At that time, she asked Bubba Kassal about the document to memorialize their understandings, and he said that Amy Galloway was working on it. On July 7, Ms. Galloway emailed to Bubba Kassal a draft letter agreement, which, among other things, confirmed that neither party was committing to Petitioner's ongoing employment after the birth of the baby. On July 8, Petitioner sent an email to Bubba and Michael Kassal and Ms. Galloway advising them that she was on bed rest and would submit FMLA paperwork as soon as possible. For some reason, the recipients did not receive this email, so they were unaware in early July of the status of Petitioner, who, understandably, did not undertake any unnecessary communications during her period of bed rest in order to save the baby. On July 11, Petitioner visited the doctor, who found that her blood pressure had soared to 200/100. Petitioner talked him out of ordering an ambulance to take her to the hospital, but the doctor ordered bed rest for Petitioner. By this time, Petitioner realized that, for the remainder of her pregnancy, she would not be able to perform even at the limited level that she had said she would work at the June 18 meeting. From this point forward, the June 18 understanding was superseded by Petitioner's medical issues. On July 11, Petitioner returned to the office briefly to advise her staff that she would be going home for the time being. While at the office, she saw an invoice from Ms. Galloway's law firm that reflected legal research conducted a couple of days after the June 18 meeting and concerned the Title VII ramifications of Petitioner's situations. Petitioner assumed that Respondent was terminating her and began to cry. On the same day, Petitioner returned to the doctor's office and had him complete the FMLA paperwork, which Petitioner had previously thought was unnecessary. The necessity for FMLA paperwork was as much Petitioner's realization, on July 11, that she could not perform even the limited duties contemplated by the June 18 understanding as her discovery, also on July 11, that Respondent had ordered its counsel to research Title VII. Later on July 11, Petitioner returned to the office with the completed FMLA paperwork and left it for Bubba Kassal. Pursuant to this paperwork, the FMLA period, during which Respondent would have to keep open her job, expired before the projected delivery date. On July 14, Petitioner returned a telephone call of Ms. Galloway and updated her on her condition. As Ms. Galloway confirmed in an email of the same date to Bubba Kassal, Petitioner wanted to take her FMLA time and understood that she would not be able to perform the transitioning tasks contemplated in the June 18 understanding. Ms. Galloway promised Petitioner that she would discuss with Bubba Kassal a reworking of her benefits, including maintaining present health benefits and obtaining disability benefits. On August 5, Petitioner sent an email to Bubba and Michael Kassal advising that she had not received her paycheck on August 2 and stating that she "continued" to be available to perform her end of the June 18 understanding. This is an attempt to document a fact that was untrue: Petitioner had not been able to perform her responsibilities under the June 18 understanding at any time after July 11. Ten minutes after receiving the email, Bubba Kassal emailed Ms. Galloway stating that they would proceed by paying Petitioner disability benefits through the birth, paying the company's portion of the health insurance until the birth, and giving Petitioner access to her company laptop computer and cellphone until October 1 in return for a release, presumably from any employment-related liability claims. It is impossible to infer that Bubba Kassal was miffed at Petitioner's misstatement, but it is likely that the misstatement motivated Bubba Kassal to define the status of Petitioner's employment relationship. By letter dated August 5 from a human relations employee to Ms. Galloway, the position of Respondent was documented, at least internally. This letter states that Petitioner's FMLA start date is July 11, 2008, and end date is October 4, 2008. This letter restates the undertakings that Bubba Kassal detailed in his August 5 email and notes that Petitioner has exhausted all of her sick and vacation time. The letter notes that the June 18 understanding was superseded by Petitioner's subsequent incapacitation. On August 14, Ms. Galloway emailed a letter to Petitioner reiterating much of the contents of the August 5 email and noting that, due to Petitioner's emergent health needs, Respondent had hired an acting human resources director on July 28. Ms. Galloway's letter restates the conditions set forth in Bubba Kassal's email of August 5, adding only that there is no expectation that Petitioner can perform any human resource duties and omitting the request for a release. A couple of weeks later, Petitioner emailed a brief message to Ms. Galloway acknowledging receipt of the letter and thanking her for all that she "does," but not otherwise responding to the letter. On October 8, Ms. Galloway sent another letter to Petitioner noting that the FMLA period had expired and that Respondent continued to perform the conditions detailed in the August 14 letter. The letter asks for the return of the laptop computer and cellphone. On November 5, Petitioner delivered her baby. One month later, she spoke with Ms. Galloway exploring, in Ms. Galloway's opinion, the possibility of returning, if her replacement were not working out, or obtaining additional severance pay. Ms. Galloway explained the company's view that the termination was voluntary, not involuntary. Eventually, Respondent agreed to pay Petitioner another week's salary, through July 18, and extended her insurance through December 31, so that Petitioner would have another chance to exercise her COBRA rights. Respondent advised that it was treating Petitioner's termination date as October 4, which was when the FMLA period had expired. There is no evidence of discrimination in Respondent's handling of Petitioner's pregnancy. Respondent assigned no role of substance in the 2008 events to Michael Kassal, whose objections to the June 18 understanding were completely ignored. There is no evidence that the company's actions in 2008 were influenced in any way by Michael Kassal's 2003-05 infatuation. Petitioner testified to a 4-6 week period during which she had previously worked at home. However, this earlier period of working at home was when Petitioner was engaged in the solitary task of converting payroll systems on the computer, and she needed a quiet place to work. Working at home under these conditions is entirely appropriate. During this period, Petitioner was working exclusively on this task, leaving her other human resources duties to others or deferring them until the conversion was finished. Any insistence by Respondent in 2008 that Petitioner work in the office is justified because Petitioner's duties generally required her to be in the office, where she would be available for, among other things, drop-in visits by corporate management needing assistance in the wide range of personnel matters that arise daily in a business of this size. However, Petitioner's claim of discriminatory treatment regarding working at home misses the larger point that, in the June 18 understanding, Respondent allowed her to work at home for the duration of her pregnancy. This understanding was defeated, not by Respondent's insistence that she work in the office, but by Petitioner's deteriorating medical condition. Petitioner also testified that Respondent allowed other managers to work at home. Again, this proof overlooks the fact that Respondent also allowed Petitioner to work at home under the June 18 understanding, and her subsequent inability to do so was due to her deteriorating health, not the demands of Respondent. Also, the other situations are distinguishable, even if Respondent had prohibited Petitioner from working at home. While one district manager's wife recovered from a broken leg and another district manager recovered from a heart attack and stroke, they worked in some fashion, either with reduced hours in the office or reduced hours from home. Petitioner's situation was different in the nature of her duties, which were corporate-wide, not district-wide; the fact that she was completely unavailable for an extended period of time; and probably for the fact that, for a substantial period of time, she failed or was unable timely to communicate her situation to Respondent. Based on these findings, Petitioner has failed to prove any form of sex discrimination in Respondent's handling of her pregnancy in 2008.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of June, 2010, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 15th day of June, 2010 . COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert A. Bogdan, Esquire Robert Anthony Bogdan, P.A. 410 Southeast 1st Terrace Pompano Beach, Florida 33060-7108 Salvatore H. Fasulo, Esquire Trip Scott, P.A. 110 Southeast Sixth Street, 15th Floor Fort Lauderdale, Florida 33301
The Issue Whether Respondent Eastern Florida State College (EFSC) engaged in discriminatory employment practices and retaliation, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Garrett is a 53-year-old African American woman. EFSC is a public college in Brevard County, Florida. For the time period relevant to this matter, EFSC is, and has been, her employer. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC eliminated her position as e-Learning Coordinator. EFSC did not fill Ms. Garrett’s position in the e-Learning department; rather, the prior job duties were assigned to other members in the e-Learning department. After eliminating the position of e-Learning Coordinator, EFSC offered Ms. Garrett the position of Coordinator of the Office of Undergraduate Research (OUR). The OUR department supports and promotes research opportunities among undergraduate research students through EFSC’s four campuses. Ms. Garrett accepted EFSC’s offer, and Ms. Garrett became EFSC’s first employee to hold the position as Coordinator of OUR. In lieu of offering Ms. Garrett the position of Coordinator of OUR, EFSC could have laid off Ms. Garrett following the elimination of her position as e-Learning Coordinator. However, rather than laying her off, EFSC found a new position for Ms. Garrett. Following her transfer to the position as Coordinator of OUR, Ms. Garrett’s salary and benefits remained unchanged from her prior position as e-Learning Coordinator. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as Coordinator of OUR. At that meeting, Dr. Handfield—who was Ms. Garrett’s new supervisor—informed Ms. Garrett that Dr. Spring and Mr. Herber were the founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR, Dr. Spring and Mr. Herber, who were full-time faculty members, oversaw the OUR program. Dr. Handfield also informed Ms. Garrett that should she have any questions regarding her position as Coordinator of OUR, she should consult with Dr. Spring and Mr. Herber. As of the date of the final hearing, Ms. Garrett remained employed by EFSC as the Coordinator of OUR, and continues to receive the same salary and benefits that she received when she was the e-Learning Coordinator. Allegations of Adverse Employment Action EFSC originally intended for the Coordinator of OUR to be a Director, and possess a doctorate degree. However, EFSC later changed this position to Coordinator, which did not require a doctorate degree, and which had a lower salary. Ms. Garrett never applied for the Director of OUR position, and she does not have a doctorate degree. Ms. Garrett testified concerning her belief for the reason that EFSC transferred her to the Coordinator of OUR position, stating: I believe they did that because the intent was to put me in a position that was beyond my reach so that when I had issues and problems, they could use that and tie it with this position in order to say that I could not do the job. On April 12, 2019, Ms. Garrett received a six-month performance evaluation covering her first six months in her position as Coordinator of OUR. Dr. Handfield provided the performance evaluation approximately four months after the performance period ended. The performance evaluation indicated that Ms. Garrett was deficient in the areas of teamwork, valuing differences, and communication. Following the performance evaluation, Ms. Garrett did not lose any pay or benefits, and nothing adverse happened to Ms. Garrett as a result of the performance evaluation. Ms. Garrett testified that she believed Dr. Handfield gave her that evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or gender. She further testified as follows: Q. Okay. But just to be clear, not gender, age, or race. You think it’s retaliation, what she did, correct? A. Correct. Q. Okay. And what was she retaliating against you for in your view or what facts do you have that it was for retaliation? A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance review period, which would have been July 9th, 2018, until January 9th, 2019. Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the six months before that; is that what you’re saying? A. Yes In January 2019, Ms. Garrett requested that she use Canvas shell computer software to enable her to build an orientation outline. EFSC denied this request, because it would not generate money. Allegations of Comparator Ms. Garrett identified Justin Looney, a 38-year-old white male, as a comparator in support of her discrimination claim.1 Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee working as an Academic Services Coordinator at EFSC’s Patrick Air Force Base campus; upon the closing of that campus, EFSC eliminated Mr. Looney’s position and, similarly to Ms. Garrett, transferred him to a newly-created position in which he received the same salary and benefits. 1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible comparator, stating that she was a white female. However, Ms. Garrett failed to introduce any additional facts or evidence concerning Ms. Sheltman’s status or to explain how the undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter. Ms. Garrett contends that EFSC treated Mr. Looney differently, during his transfer, in that EFSC provided Mr. Looney more notice time between the elimination of his prior position and the transfer to his new position. Ms. Garrett also contends that EFSC treated Mr. Looney differently than her because Mr. Looney was Dr. Handfield’s son-in-law. Allegations of Hostile Work Environment Ms. Garrett testified that at the July 10, 2018, meeting, Dr. Spring commented about the uncleanliness of the OUR office, and recommended that Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett also testified that she declined to assist Dr. Spring in hanging posters on the wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that the OUR signage was covered up on the outside of the building, and asked Ms. Garrett to correct this. Ms. Garrett testified that in subsequent meetings with Dr. Handfield, she “shared [her] concerns regarding the work environment[,]” and stated that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.” Ms. Garrett testified that Dr. Spring micromanaged her role as the Coordinator of OUR; for example, Dr. Spring continued to process online student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also testified that Dr. Spring opened the OUR online student forms too early, which prevented Ms. Garrett from matching faculty mentors with student applicants.2 Ms. Garrett also testified that Dr. Spring made decisions concerning the OUR without consulting with her. Ms. Garrett testified that Dr. Spring would send her e-mails asking if Ms. Garrett had completed the work requested of her. 2 Ms. Garrett also testified that Mr. Herber was not involved in micromanaging her role as the Coordinator of OUR. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should be doing, and would become vocal with her dissatisfaction of Ms. Garrett’s job performance. Ms. Garrett testified that she did not know why Dr. Spring engaged in any of these actions. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified that her work atmosphere became “more tense … in terms of Dr. Spring and Mr. Herber starting to make comments about allegations about my work.” She further testified that after this meeting, Dr. Handfield “started issuing directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and Mr. Herber for input prior going to other EFSC campuses to host information tables. Ms. Garrett claimed that she was subjected to a hostile work environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say disparaging comments during the meeting.” For example, “[t]hey would talk across me and I did not reply.” Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett testified that Dr. Handfield openly discussed supervision of the OUR with Dr. Spring and Mr. Herber. Findings of Ultimate Fact Ms. Garrett presented no persuasive action that EFSC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race-based, sex-based, or age-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age discrimination. Ms. Garrett presented no persuasive evidence that EFSC’s actions subjected her to harassment based on race, sex, or age. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age harassment. Ms. Garrett presented no persuasive evidence that EFSC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Garrett presented no persuasive evidence that EFSC’s actions were sufficiently severe or persuasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Mary F. Garrett Apartment 2508 2741 Caribbean Isle Boulevard Melbourne, Florida 32935 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent, Holmes Regional Medical Center, is guilty of violating Subsection 760.10, Florida Statutes (2003), by allowing Petitioner, Stephanie Francis, to be harassed because of her race and denying her reasonable accommodations for her pregnancy during her employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is an African-American female who was employed by Respondent as a Certified Nursing Assistant. At the time of the incidents that led to her dismissal from employment, she was pregnant although her condition was not apparent and was unknown initially, at least, by her employer. Respondent is a Florida corporation that operates a major hospital facility in Brevard County, Florida. Respondent is subject to Chapter 760, Florida Statutes (2003). Having recently received her certification, Petitioner's employment began in October 2002. Several months after she became employed, Petitioner requested and received permission to attend Health Unit Coordinator classes. This training would provide the opportunity for career advancement. In order to enable Petitioner to attend Health Unit Coordinator classes, adjustments were made in the work schedules of Petitioner and her co-workers. As the classes were during the day, Petitioner began working night shift. Shortly after she began taking Health Unit Coordinator classes, Petitioner became aware that she would not receive additional pay for attending the training. Petitioner, whose work had been satisfactory, had a marked change in attitude after she learned that she would not receive additional pay. Beginning in April 2003, Petitioner requested numerous transfers from the acute care unit to which she had been initially assigned. Her immediate supervisor, Pegreen Bibby, approved each of Petitioner's transfer requests. Petitioner was not transferred. No evidence was received regarding the reason(s) why Petitioner was not transferred. Petitioner indicated that she was not aware of why she was not transferred. On April 23, 2003, a co-worker complained that Petitioner spoke to a patient in an inappropriate manner. An investigation confirmed the inappropriate conduct. Petitioner was counseled by her immediate supervisor and received a Counseling Memo which noted that Petitioner had a "poor attitude." Petitioner refused to sign the Counseling Memo. On April 28, 2003, Petitioner's immediate supervisor received a complaint from a patient about Petitioner's conduct. An investigation revealed that Petitioner had treated the patient callously and had made several inappropriate comments to the patient. In the course of the investigation, Licensed Practical Nurse Linda Sweeney (LPN Sweeney) commented that Petitioner made inappropriate comments and had a bad attitude, which according to LPN Sweeney was "normal behavior" for Petitioner. LPN Sweeney is African-American. As a result of the April 28, 2003, incident and related investigation, Petitioner received a written warning and information about the Employee Assistance Program. Petitioner refused to sign the written warning. On March 3, 2003, Petitioner presented a note from a gynecologist stating that she required light-duty and that she could not lift more than 20 pounds. Petitioner did not offer an explanation for the note and her supervisor, unaware that Petitioner was pregnant, did not inquire, believing that the basis for the light-duty was a private matter. Petitioner did not indicate that she had made her co-workers aware of her pregnancy. Petitioner's job description requires her to have the ability to lift up to 40 pounds unassisted and to lift, assist, bathe, and dress patients. No positions were available in the acute care unit that did not require fulfillment of the job description. Light-duty work is reserved for employees who suffer job-related injuries. As a result, Petitioner was not scheduled for work. On May 14, 2003, Petitioner presented a note indicating that she was able to return to work without restrictions. She was immediately rescheduled for work. Upon her return to work, her co-workers complained that Petitioner's attitude was "hostile." Co-workers, both African-American and Caucasian, complained that Petitioner resisted helping them. Petitioner was observed wearing headphones and reading a newspaper for approximately two hours while co-workers performed her and their responsibilities. As a result of Petitioner's demonstrated poor attitude and lack of job-effectiveness, Respondent initiated the final stage of its progressive disciplinary process: "decision day." On May 23, 2003, Petitioner received a Counseling Memo which documented her inappropriate work behavior, co-workers' complaints, and failure to follow Respondent's employee rules. Again she refused to sign the Counseling Memo. When "decision day" is invoked, an employee is given paid leave and presented the opportunity to offer a written action plan addressing the deficiencies listed in the Counseling Memo. Petitioner refused to present an action plan as required. Petitioner refused a memo regarding the Employee Assistance Program, indicating that she had one. Petitioner left work and did not return. As a result, on May 30, 2003, Respondent terminated Petitioner's employment. Petitioner failed to identify a similarly situated employee who received different treatment than did Petitioner. Respondent presented evidence of a Caucasian male employee who had refused to submit an action plan following a "decision day" and was discharged. Petitioner suggests, without offering evidence, that she was "harassed" by LPN Sweeney. As previously noted, LPN Sweeney is African-American. In addition to Petitioner's noted inappropriate behavior, subsequent to her discharge, Petitioner made Respondent aware that she had secretly tape-recorded conversations of her co-workers. She acknowledged this during her testimony. This, of course, is a violation of Section 934, Florida Statutes (2003), and is a punishable as a third-degree felony. While not the basis for her dismissal from employment, Respondent's representative testified that this conduct constituted a dischargeable offense in accordance with Respondent's policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 Stephanie Francis Post Office Box 161 Melbourne, Florida 32902 Andrew S. Hament, Esquire Gray, Harris & Robinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Florida Department of Economic Opportunity (the Department or DEO) engaged in discriminatory practices, concerning Petitioner’s disability, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright was an Employment Program Specialist with the Department’s Reemployment Assistance Division. Although she primarily worked in the Special Programs Child Support unit, she was also assigned to the Benefit Records unit during her employment with the Department. Ms. Wright testified that her issues with the Department started in 2014, and continued until her resignation on August 15, 2018. In 2014, Ms. Wright began experiencing serious medical issues, including bowel and bladder trouble, fatigue, and fibromyalgia. In September 2014, she took a month of leave from her employment because of these medical issues. Upon her return, Ms. Lampkin, who worked in DEO’s human resources department (HR), primarily focused on payroll, and Ms. Wright’s then-supervisor, Ayman Youseff, instructed her to use “leave without pay” for additional absences. Ms. Wright testified that after her return in 2014, Mr. Youseff began harassing her after she took another leave from employment, in the form of requiring her to provide additional supporting medical documentation for the leave. When Ms. Wright informed Mr. Youseff that his request was incorrect, he apologized and advised his supervisors of the mistake. Ms. Wright and her former co-worker, Ms. Milton, both testified that Mr. Youseff was rude and unprofessional. Ms. Milton testified that Mr. Youseff also had issues with Ms. Wright concerning her absences due to illnesses, and with other employees donating leave to Ms. Wright. Ms. Wright also testified that Mr. Youseff made her turn in her timesheets to him directly, as opposed to HR. Ms. Wright testified that she viewed this request, as well as requests from HR to use donated sick leave after she had exhausted all other remaining leave, and ultimately to use leave without pay—which she acknowledged were prompted by her absences from work during this time period—as harassment. In February 2015, Ms. Wright requested a transfer back to a previous unit within DEO, under a supervisor she liked, because she felt she was being harassed. DEO granted her transfer request in less than two weeks. Ms. Wright’s new supervisor was Mr. Leonard. However, after her transfer, Ms. Wright’s medical conditions did not go away. In September 2016, she submitted a request for a modified schedule accommodation to Mr. Huddleston, in DEO’s Office for Civil Rights, which noted that she had issues in the mornings because of her medical condition. DEO granted this request, and changed Ms. Wright’s work schedule to 10:30 a.m. through 6:30 p.m. Beginning in early 2017, DEO overpaid Ms. Wright several times because she failed to complete her timesheet and failed to timely document her use of leave without pay. In August 2017, Ms. Wright took a one-month absence from employment because of her medical issues, and was frequently absent from work during the following few months. During this time period, an HR employee accepted Ms. Wright’s incorrect timesheets for those time periods, and recouped each month’s overpayment from the following month’s pay. This became an issue for DEO because Ms. Wright utilized leave without pay for most of the month of August; however, the resulting lack of funds owed to her precluded DEO from immediate recoupment. Ms. Lampkin, who had left her employment with DEO but returned to her position in August 2017, recognized the payment issue with Ms. Wright. Ms. Lampkin testified that, because of Ms. Wright’s submittal of timesheets that utilize leave without pay after the payroll deadline for correcting timesheets, DEO’s HR department began paying Ms. Wright “on-demand,” i.e., payment for hours that she actually worked, to avoid overpaying Ms. Wright month after month. DEO introduced into evidence the Bureau of State Payroll Manual (Manual), which governs DEO’s handling of payroll issues. With respect to salary overpayment, the Manual states that “Agencies are responsible for identifying and preventing salary overpayments ” Although Ms. Wright contends that this switch from recoupment (which resulted in salary overpayment) to payment on-demand was evidence of harassment based on her disability, she also testified, on cross-examination, that “it’s verified in [the Manual] that it could be done that way.” Ms. Lampkin also credibly explained an issue that arose with Ms. Wright’s allegation that DEO canceled her insurance benefits, which Ms. Wright considered additional harassment. Ms. Lampkin testified: The term canceled is kind of an overstatement. There is a glitch in their insurance if I have to cancel their check and pay them on demand, because that means that the payment doesn’t go over when the regular payroll runs, and it gets paid on supplemental, and it’s usually on the same date that their payday is, but then it’s—the payment to the insurance companies would be sent at a later date than the other ones. It would be a lag time there. * * * If I canceled their monthly paycheck, that stops payment going to any pretax deductions; it would stop them. And then by paying them on demand, that would create the payment and send it over, but the difference in an on-demand and the regular payroll is processed approximately one week before payday. And on-demand is processed three days before payday. Technically two days, because the third day is when they get paid so—so it’s that lag time from a week to down to three days. Ms. Wright also testified that DEO engaged in harassment in discouraging other employees from donating sick leave to her. For example, in 2018, Ms. Wright testified that DEO hindered Charlie Davis, a DEO management level employee, from donating hours to her. DEO presented evidence that Ms. Wright was the recipient of many sick leave donations during her employment; all told, she received and used over 1,000 hours between 2014 and her resignation. Although Mr. Davis had donated sick leave hours to Ms. Wright previously, Ms. Pottle, who was Ms. Lampkin’s supervisor in DEO’s HR Department, explained that DEO employees in a supervisory or management position “are highly discouraged from donating to employees because it – it could be construed as favoritism.” Ms. Wright testified that she discussed Mr. Davis’s intention to donate additional sick leave hours with another DEO employee, and Mr. Davis was ultimately permitted to donate sick leave to Ms. Wright. On February 6, 2018, in response to Ms. Wright’s expressed concerns, individuals in Ms. Wright’s supervisory chain and Ms. Lampkin, met with Ms. Wright to discuss two options she could use in an attempt to resolve her leave and payroll issues: (a) be paid on-demand early, with the balance paid after she finalized her timesheet at the end of the month; or (b) remain on automatic pay, but provide donated leave hours and any necessary medical certification supporting their use by the 15th of each month. Following the February 6, 2018, meeting, Ms. Wright began providing medical certifications, which stated that she needed time off from work intermittently to attend medical appointments. Ms. Wright testified that she believed that these medical certifications allowed her to arrive for work as late as she felt necessary due to her medical condition. Ms. Wright, during a June 5, 2018 meeting with Mr. Leonard, expressed this belief; Mr. Leonard, in an email to Ms. Wright that same day, asked her “to provide supporting documentation regarding the need to arrive at work after 10:30 a.m. since the most recent documentation reflects a schedule of 10:30 a.m. to 6:30 p.m.” Mr. Leonard also testified about his team’s experience covering for Ms. Wright when she was absent. He stated that Ms. Wright cross-trained other members of this team to complete her work in her absence. However, when covering for Ms. Wright, these team members would then have work duties above and beyond their regular work duties. On June 8, 2018, Ms. Wright submitted a request to Mr. Huddleston in DEO’s Office for Civil Rights requesting a flexible, part-time schedule that would allow her to arrive for work between 10:30 a.m. and noon, and end her workday at 6:30 p.m. (Second Accommodation Request). With this Second Accommodation Request, Ms. Wright also submitted a letter from her physician stating that she was unable to arrive to work and do her job before 10:30 a.m., and would benefit from the flexible schedule she requested. At the time of Ms. Wright’s Second Accommodation Request, DEO’s Reemployment Assistance program was undergoing a significant reorganization. Ms. Wright worked in the Special Programs unit of DEO’s Reemployment Assistance program at that time. Mr. Huddleston testified that, after receiving Ms. Wright’s Second Accommodation Request, DEO decided to deny it. In an email dated July 11, 2018, Mr. Huddleston wrote: After reviewing your request, at this time, your request, to modify your accommodation of a flexible part-time work schedule is denied. Currently your accommodation allows you to work at 10:30 AM instead of your regularly scheduled start time of 8:00 AM. Your new accommodation request asks that you be allowed to arrive at work after 10:30 AM but before 12:00 PM. In making this decision our office has spoken with your management team and has determined that this modification would cause an undue hardship. This modification to your existing accommodation would also require a lowering of performance or production standards. Based on these two factors, we have determined that you would not be able to perform the essential functions of your position if this modification were to be put into place. The Equal Employment Opportunity Commission states that essential functions are basic job duties that an employee must be able to perform, with or without a reasonable accommodation. These duties must be performed to achieve the objectives of the job. As part of this, and all accommodation request reviews, our office analyzed your position to determine its purpose and essential functions, consulted with your management team, and researched and explored accommodation options to assess the effectiveness of the accommodation. During this interactive process we explored the possibility of reassigning you to another position that was as close as possible to your current position in status and pay; however, we were unable to find a suitable position. There are no part-time positions currently available and the essential functions of your position can not be completed working the hours you requested. Our office would be more than happy to meet with you to discuss this further and to explore other accommodation options that you and/or your medical professional come up with. However, on July 10, 2018—the day before Mr. Huddleston sent the email denying the Second Accommodation Request—Ms. Wright went on another month-long leave of absence from her employment because of her worsening medical condition. Ms. Wright testified that she believed that DEO would approve of her Second Accommodation Request and that, after returning to work, she would start the new schedule. Ms. Wright testified that she did not know the status of her Second Accommodation Request until she returned to work (after her month-long leave of absence) on August 13, 2018, and read Mr. Huddleston’s email. She sent him the following email response later that afternoon: Thanks for reviewing my request to modify my work schedule. I understand that there is no part- time positions available; but I was referring to me working at least 30 hours per week. When I met with my supervisor Marche and Joel in June concerning me arriving later than my scheduled time 10:30 AM, I advised them that I needed to request a modification to my previous work schedule because I moved back home with my mom which is outside of Quincy due to my health. I also advised them that it was impossible for me to arrive to work at 10:30 AM due to the distance I had to travel and the medications I take. I informed them that 11:15 or 11:30 would work better for me because I understand that my job consists of duties that must be performed in order to achieve the objectives outlined for the job. Please let me know when there’s a good time for us to meet. Thanks again for your help concerning this matter. Rather than wait for Mr. Huddleston’s response, Ms. Wright resigned on August 15, 2018, by a letter that she left in a co-worker’s chair. This resignation letter does not identify any reason for her resignation. On August 20, 2018, Mr. Huddleston—unaware of Ms. Wright’s resignation—actually responded to Ms. Wright’s August 13, 2018, email, inviting her to meet with him about her concerns. Ms. Wright testified that she has not sought out employment after her resignation from DEO because of her medical condition. Ms. Wright presented no persuasive evidence that DEO’s actions subjected her to harassment based on her disability, or that such actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, substantial evidence in the record upon which the undersigned could make a finding of unlawful disability harassment or hostile work environment. Ms. Wright presented no persuasive evidence that, at the time of her resignation, her working conditions were so intolerable that a reasonable person in her position would have felt compelled to resign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Angela Wright’s Petition for Relief. DONE AND ENTERED this 19th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Angela Michelle Wright 4102 Greensboro Highway Quincy, Florida 32351 (eServed) Dominique Gabrielle Young, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399 (eServed) Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice and, if so, determination of the relief to which the Petitioner is entitled.
Findings Of Fact The Petitioner, Allison M. Huth, is an adult female person. At all times material to this proceeding the Petitioner has been a resident of the State of Florida. The Respondent, National Admark Corporation, is an advertising agency and publishing company. At all times material to this proceeding, the Respondent was doing business from offices located in Fort Lauderdale, Florida. On the morning of June 12, 1998, a Mr. William Rufrano, who was at that time a boyfriend of the Petitioner, took the Petitioner with him to the Fort Lauderdale offices of the Respondent. At that time, Mr. Rufrano had some type of arrangement with the Respondent pursuant to which he worked in the field making sales calls in an effort to sell the Respondent's products.1 The Petitioner's reason for going with her boyfriend to the Respondent's offices on June 12, 1998, was to find out more about the company in order to decide whether she wanted to work for the company. Upon arriving at the Respondent's offices on June 12, 1998, Mr. Rufrano introduced the Petitioner to his "boss" and to several of the other people who worked in the Respondent's offices. Shortly thereafter, Mr. Rufrano left the Respondent's offices and spent most of the rest of the day meeting prospective customers and making sales presentations outside of the Respondent's offices. The Petitioner remained at the Respondent's offices for most of the day. The Petitioner spent the day making calls to prospective customers. She attempted to have each of the prospective customers make an appointment for a salesperson to visit and make a sales presentation for the Respondent's products.2 The Petitioner never signed any paper work with the Respondent regarding any business relationship between herself and the Respondent. Specifically, she did not sign or submit an application for employment with the Respondent, she did not sign or enter into an employment contract with the Respondent, and she did not sign or enter into an independent contractor agreement with the Respondent. The Petitioner did not have an understanding with the Respondent as to what her hours of work would be or as to how many hours she would work each day, each week, or each month. The Petitioner did not have an understanding with the Respondent as to what her compensation would be for making telephone calls.3 In sum: The Petitioner and the Respondent never entered into any agreement by means of which the Petitioner became either an employee or an independent contractor of the Respondent. During the course of her day at the Respondent's offices, the Petitioner had occasion to seek assistance from Mr. Anthony Tundo, who was the Respondent's Sales Manager, and was the person the Petitioner had been told to contact if she had any questions. Following the Petitioner's request for assistance, Mr. Tundo engaged in a number of inappropriate, unwanted, and ungentlemanly acts that caused the Petitioner to become very upset and uncomfortable. The worst of Mr. Tundo's acts that day are described as follows in the Petitioner's Exhibit 8, a letter signed by the Petitioner and her boyfriend a few days after the events on June 12, 1998: Mr. Tundo began stroking Allison's [Petitioner's] head very softly and used the excuse that he was trying to pick something out of her hair. Mr. Tundo trapped Allison against the coffee counter in the hallway. He then pressed himself, including his erection [,] against her body which was against the counter. He then proceeded to kiss her on her forehead and cheeks. When Allison was in Mr. Tundo's office, he told her to take a look at something he was doing. Not wanting to go behind the desk, Allison leaned over the front of the desk to look. As she did so, Mr. Tundo stared directly down Allison's blouse and commented[,] "what a nice pair of tits you have." Allison quickly stood up, and proceeded to walk around behind Mr. Tundo's desk figuring he couldn't look down her blouse. As she was leaning on his desk watching what he was doing, he began to stroke her fingers and hands. He then told her to turn around. Allison did so thinking there was a flaw or something wrong with her outfit. He then grabbed her firmly by the backs of her arms and positioned her[,] which made her feel extremely uncomfortable. After doing so, he uttered the word[,] "there." He then told Allison[,] "You have very, very nice legs," and "You have a very beautiful ass[,]" and proceeded to pat Allison on her rear end. When Allison was sitting on the couch in Mr. Tundo's office, she got up to go to the ladies' room. Mr. Tundo told her to sit back down. Presuming Mr. Tundo wanted to tell her some more things related to business, she sat back down. Mr. Tundo told her to "do that again." When Allison questioned what he meant, Mr. Tundo told her that he wanted her to uncross her legs (like she would have to do in order to stand up) again so he could see what it looks like inside her legs and up her skirt. Mr. Tundo was also moving his hands in an outward motion as he was telling her these things. After Allison left Mr. Tundo's office, he continued to follow her around the office building. As he was following her, he continually told her that she has "such a sexy walk," and "such a nice ass." He followed her into the conference room next to the coffee maker. He then proceeded to rub her shoulders, moaning softly and breathing heavy as he did so. He then told her that she seemed "tense." There is no competent substantial evidence that Mr. Tundo had ever previously engaged in conduct such as that to which he subjected the Petitioner. There is no competent substantial evidence that Mr. Tundo had ever previously engaged in any type of conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever been advised that Mr. Tundo had previously engaged in any conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever received any prior complaints that Mr. Tundo had engaged in conduct such as that to which he subjected the Petitioner, or that he had engaged in any other type of conduct that would create a sexually hostile or abusive work environment.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order in this case dismissing the Petition for Relief and denying all relief sought by the Petitioner. DONE AND ORDERED this 30th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. 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 30th day of May, 2001.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Charge of Discrimination, in violation of Section 760.10(1), Florida Statutes. Preliminary Statement Petitioner, Alton Saunders, filed a Charge of Discrimination with the Florida Commission on Human Relations ("Commission") on May 10, 2000. The Commission did not make a determination regarding Petitioner's charge of discrimination within 180 days as required by Section 760.11(3), Florida Statutes. On December 27, 2000, Petitioner filed a Petition for Relief and thereby requested an administrative hearing. On March 2, 2001, the Commission referred the matter to Division Of Administrative Hearings to conduct an administrative hearing. On March 22, 2001, a final hearing was set for May 9-11, 2001, in Orlando, Florida. The final hearing was reset for June 6-8, 2001. On March 27, 2001, Respondent filed a Motion to Dismiss alleging that Petitioner "failed to timely request an administrative hearing with the Florida Commission on Human Relations as required by Section 760.11(6), Florida Statutes." On May 17, 2001, an Order Reserving Ruling on Respondent's Motion to Dismiss was entered, reserving ruling until the matter was reconsidered after the close of evidence at the final hearing. At the onset of the final hearing, Petitioner requested a continuance, which was denied. In support of his request for continuance, Petitioner presented a letter from Robert Wheelock, an Orlando attorney, which was made a part of the record as Petitioner's Exhibit A, but not received into evidence. Petitioner presented James "Jan" Saunders, Hugh Paton, Brett Saunders, Doris Dixon, Debra Sweeney, and himself as witnesses. Petitioner offered two exhibits, 1 and 2, which were received into evidence. Respondent presented Debra Sweeney and two additional witnesses, Richmond Taylor and Karl D. Fillauer, by deposition. Respondent offered 13 exhibits; 1-8 and 14-17 were received into evidence. Respondent's exhibit 11 was not admitted into evidence. The Transcript of proceedings was filed on July 23, 2001. Respondent filed a Proposed Recommended Order on August 20, 2001. Petitioner did not file a proposed recommended order.
Findings Of Fact Petitioner was born on August 16, 1922, is 79 years old, and is a member of a protected class. Respondent, Hanger Prosthetics and Orthotics, Inc. ("Hanger"), employed Petitioner at the time of the alleged discrimination. Hanger is engaged in the manufacture, service, and sale of prosthetics and orthotic devices around the country, including in Central Florida. Petitioner and his family have also been engaged in the prosthetics and orthotics industry throughout Central Florida for many years, operating under a variety of different business names. From approximately 1985 through 1997, Petitioner was employed as a general office employee by Amputee and Brace Center, a prosthetics and orthotics company owned by Petitioner's sons, Jerome and Jan Saunders. In 1997, Amputee and Brace Center was acquired by NovaCare, a competitor in the prosthetics and orthotics industry. As part of the sale, members of the Saunders family, including Petitioner, became employees of NovaCare. Shortly after the acquisition of Amputee and Brace Center by NovaCare, several members of the Saunders family left NovaCare's employ to work for competing prosthetics and orthotics companies. For example, Scott Saunders, Petitioner's grandson, left NovaCare's employ and opened a competing company, ABC Prosthetics and Orthotics, Inc. across the street from NovaCare's facility on Gore Street in Orlando. In July 1999, NovaCare was acquired by Hanger, previously another competitor of NovaCare. Following the merger of NovaCare and Hanger, Petitioner became an employee of Hanger and remained at the facility located on Gore Street in Orlando. As a result of the merger, numerous personnel changes occurred at the Gore Street facility. For example, Debra Sweeney, a longtime Hanger employee, was transferred to the Gore Street facility as the Clinical Operations Director. In December 1999, the title of Clinical Operations Director was changed to Area Practice Manager. Ms. Sweeney was the individual ultimately responsible for the Gore Street facility where Petitioner was then employed. On March 8, 2000, a misdirected envelope and its contents arrived with the rest of the mail at the Gore Street facility. The envelope was addressed to Dr. Steven Goll, a significant source of patient referrals for Hanger. The return address on the envelope was the return address of ABC Prosthetics and Orthotics, Inc., the company owned by Petitioner's grandson, Scott Saunders, and Hanger's biggest competitor in Central Florida. The envelope was routinely opened by a member of Hanger's office staff and then delivered, along with its contents, to Debra Sweeney. The envelope addressed to Dr. Steven Goll contained a solicitation letter bearing Petitioner's signature seeking business referrals on behalf of a new company, Anatomically Correct Cosmetic Restorations ("Anatomically Correct"). The envelope also contained Petitioner's business card and a trifold marketing piece which explained the types of products and services offered by Anatomically Correct. According to the trifold, Anatomically Correct offered prosthetic and orthotics services and devices which were identical to significant services and devices being offered by Hanger. Upon receiving the marketing materials, Debbie Sweeney immediately recognized the return address on the envelope and trifold marketing piece as the return address for Hanger's competitor, ABC Prosthetics and Orthotics, Inc. ABC Prosthetics and Orthotics, Inc., Hanger's competitor, had given Petitioner permission to use the business address of ABC Prosthetics and Orthotics, Inc., as well as ABC Prosthetics and Orthotics, Inc.'s envelopes in distributing the Anatomically Correct marketing materials. Petitioner's granddaughter-in-law, the wife of the president of ABC Prosthetics and Orthotics, Inc. designed the marketing materials for Anatomically Correct. Upon examining the contents of the envelope, Ms. Sweeney suspected that Petitioner was engaged in improper competition with their employer, Hanger. On March 9, 2000, a meeting was held among Ms. Sweeney, Petitioner, and Rose DeLucia, the branch manager of the Gore Street facility, during which time Ms. Sweeney presented Petitioner with an opportunity to explain the contents of the envelope that had arrived at Hanger's Gore Street facility the previous day. During the March 9, 2000, meeting, Petitioner admitted that he had developed the marketing materials, signed them, and distributed them. Additionally, Petitioner admitted that he had mailed the solicitation materials out to physicians practicing throughout the Orlando area who referred patients to Hanger for the purpose of seeking patient referrals from them for his new business. Petitioner had not solicited business from Hanger's referring physicians during the time that he was actively working for Hanger, i.e., 8:00 a.m.-5:00 p.m. Petitioner acknowledged that he had not advised Hanger that he intended to start Anatomically Correct and engage in business. Petitioner's conduct was a violation of Hanger policy as well as the policy of Petitioner's former employer, NovaCare, which merged with Hanger. As a result of the discussion and Petitioner's acknowledgment of production and distribution of the solicitation materials, Ms. Sweeney advised Petitioner that his employment was terminated for conduct in conflict with his obligations to Hanger, specifically competing with Hanger while employed by Hanger. Petitioner's employment was terminated for his improper competition with his employer, Hanger, and was unrelated to Petitioner's age. In his March 10, 2000, application for unemployment compensation benefits with the State of Florida Department of Labor, Petitioner indicated that he had been informed that he was being terminated because his "outside work is in conflict with their type of work." In a July 1999, conversation involving overstaffing at the Gore Street facility, Wallace Faraday, a Hanger executive, suggested, "Isn't it time for Al [Respondent] to resign, maybe one of his sons will hire him," or words to that effect. On April 27, 2000, Petitioner signed and dated a Charge of Discrimination. The Charge of Discrimination was filed with the Commission on May 10, 2000. Section 760.11(3), Florida Statutes, requires that the Commission determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date Petitioner filed his Charge of Discrimination. The last day the Commission could have issued its determination of reasonable cause was November 6, 2000. The Commission failed to issue an order determining reasonable cause. When the Commission failed to determine reasonable cause, Petitioner had 35 days from November 6, 2000, or no later than December 11, 2000, to request an administrative hearing in accordance with Sections 760.11(4), (6), (7), and (8), Florida Statutes. Petitioner executed an Election of Rights form indicating his desire to withdraw his Charge of Discrimination and file a Petition for Relief to proceed with an administrative hearing on December 27, 2000. Petitioner did not file his request for administrative hearing within 35 days of November 6, 2000. Petitioner's claim is barred. Section 760.11(6), Florida Statutes, expressly provides, in pertinent part: "An administrative hearing pursuant to paragraph 4(b) must be requested no later than 35 days after the date of determination by the commission."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanger's Motion to Dismiss finding that Petitioner's Election of Rights and request for an administrative hearing was not timely filed, finding that Hanger did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001. COPIES FURNISHED: Lisa H. Cassilly, Esquire Ashley B. Davis, Esquire Alston & Bird, LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Alton M. Saunders Jerome Saunders 418 Seville Avenue Altamonte Springs, Florida 32714 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Fort Walton Beach Medical Center (FWBMC), engaged in employment discrimination and, thus, violated the Florida Civil Rights Act(FCRA), section 760.10, et seq., Florida Statutes, by: (a) failing to accommodate Petitioner, Jennifer L. Landress, because of her alleged disability; (b) subjecting Ms. Landress to a hostile work environment on the basis of her sex; (c) constructively discharging Ms. Landress from employment; and (d) retaliating against Ms. Landress, and, if so, the appropriate penalty.
Findings Of Fact FWBMC hired Ms. Landress on October 31, 2005, and employed her for approximately 14 years as a Cardiovascular Services Specialist. Ms. Landress resigned her employment with FWBMC on October 4, 2019. During her employment with FWBMC, Ms. Landress reported to either Ms. Ristom, Vice President of Quality and Risk Management, or Rob Grant, the former Director of Cardiovascular Services. Between August 30, 2018, and October 4, 2019, FWBMC also employed Ms. Sanders, Human Resources Business Partner, and Ms. Clark, Cardiovascular Tech. FWBMC never employed Dr. Al-Dehneh (or the other physicians who testified at the final hearing—Dr. Sandwith and Dr. Chen). Dr. Al-Dehneh has privileges to use FWBMC to provide services to the patients who come to FWBMC to receive care. Neither Dr. Al-Dehneh nor any of the physicians who testified at the final hearing were supervisors of Ms. Landress. Further, Dr. Al-Dehneh: never had a role in Ms. Landress’s discipline or schedule; never evaluated her performance; and did not exercise any control over Ms. Landress or affect the terms or conditions of her employment with FWBMC. FWBMC’s Policies Concerning Discrimination and Sexual Harassment FWBMC has a policy entitled “Equal Employment Opportunity/Harassment,” which is included in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Equal Employment Opportunity/Harassment” policy states, in part: Equal employment opportunities are provided to all employees and applicants for employment without regard to race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, genetic information, or protected veteran status with applicable federal, state and local laws. This policy applies to all terms and conditions of employment, including, but not limited to, hiring, placement, promotion, termination, layoff, transfer, leaves of absence, compensation and training. * * * Any form of unlawful employee harassment based on race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, protected veteran status or any other status in any group protected by federal, state or local law is strictly prohibited. Improper interference with the ability of employees to perform their expected job duties is not tolerated. Each member of management is responsible for creating an atmosphere free of discrimination and harassment, sexual or otherwise. Further, employees are responsible for respecting the rights of their co- workers. The following is prohibited: Unwelcome sexual advances, requests for sexual favors, and all other verbal or physical conduct of a sexual or otherwise offensive nature …. Behaviors that engender a hostile or offensive work environment will not be tolerated. These behaviors may include, but are not limited to, offensive comments, jokes, innuendos and other sexually oriented or culturally insensitive/inappropriate statements, printed material, material distributed through electronic media or items posted on walls or bulletin boards. FWBMC also has a policy entitled “Complaint Procedures,” which is contained in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Complaint Procedures” policy states, in part: If you experience any job-related harassment based on race, national origin, religion, gender, gender identity, color, disability, age or other factor prohibited by federal, state or local statute, or you believe you have been treated in an unlawful, discriminatory manner, promptly report the incident to your manager or Human Resources, who will investigate the matter and take appropriate action. If you believe it would be inappropriate to discuss the matter with your manager or Human Resources, you may bypass your manager or Human Resources and report it directly for investigation at The Ethics Line at [phone number]. Ms. Landress testified that she received a copy of the employee handbook, read the policies contained in it—including the policy concerning “Equal Employment Opportunity/Harassment” and “Complaint Procedures”—and knew of and utilized them. Ms. Sanders testified that if FWBMC, after investigation by its human resources department, substantiates a claim of harassment or discrimination by a physician, it would provide its investigative findings to the medical staff office, who would then refer the physician to a peer review process that could culminate in an appropriate action with respect to that physician’s hospital privileges. The undisputed evidence at the final hearing revealed that Ms. Landress reported to FWBMC’s human resources department that she was subjected to discrimination and harassment in August 2018, and again in March 2019. Allegations of Harassment and Hostile Work Environment Ms. Landress testified that Dr. Al-Dehneh began sexually harassing her starting in 2013. On August 30, 2018, she met with Ms. Sanders and Ms. Ristom and discussed this allegation. Ms. Sanders testified of the allegations made by Ms. Landress at the August 30, 2018, meeting: That Dr. Al-Dehneh had asked Rob to find women for him and to get Ms. Landress to sleep with him. She also indicated that Dr. Al-Dehneh was listening to her conversations via some sort of recording or monitoring device in her computer. She felt that Dr. Al-Dehneh had bugged her home through Siri and had accessed her medical records here at the facility. She was afraid for her life and had a gun. She also felt that Dr. Al-Dehneh was watching her home and that she told us a story about a lady on a bike who said that she was dead to her. She was afraid to go to the police about Dr. Al-Dehneh because she had been told that he was a mobster. And then she did admit to us at one point that she had started developing feelings for Dr. Al-Dehneh. Ms. Ristom also testified concerning the allegations made by Ms. Landress at the August 30, 2018, meeting: She said that Dr. Al-Dehneh had said to her to let him know when she was ready to get married. She said that Rob was tasked with getting women and obtaining sex for Dr. Al-Dehneh. And, you know, during that time Jennifer told me that – told Julie Sanders and I that she had started developing feelings for him, for Dr. Al-Dehneh. And in addition, she felt like her neighbor was watching her and providing information back to Dr. Al-Dehneh about her activities at home. Also, she said that she was afraid to report him because she felt like she – she understood him to be a mobster. She said he was listening to her through a listening device when she was at home through, like, a Siri, a radio kind of device because he would say things that he would only know if he was able to hear her at home. She told us about a heavyset lady on a bicycle who told her that she was a dead lady, that Jennifer was a dead lady, but that that woman was not going to be the one to kill her because Jennifer had been nice to her. She said that she was afraid to go to the police because she believed Dr. Al-Dehneh to be a mobster and that he owned the police and the hospital as well. She said that she was defending herself – felt like she needed to defend herself and had been carrying a gun and keeping it on her nightstand as well. She told us that she hadn’t slept in months, that she was taking medication to help her but that she was having difficulty concentrating. The testimony of Ms. Landress more or less confirmed that she made those allegations that Ms. Sanders and Ms. Ristom testified were made at the August 30, 2018, meeting, and that those allegations formed the basis for her Petition for Relief. She added that Dr. Al-Dehneh “constantly” harassed her, that she believed he started a rumor at the hospital that she had herpes, and that he had her “followed” to a local mall. Ms. Landress denied that she had romantic feelings for Dr. Al-Dehneh, but stated that she “had a great working relationship with him for a long time.” Dr. Al-Dehneh testified and denied all of Ms. Landress’s allegations, including: asking Ms. Landress to let him know when she was ready to get married; offering to “buy” Ms. Landress from her husband; threatening to have Ms. Landress fired; having Ms. Landress followed; putting a “hit” out on Ms. Landress; making comments about Ms. Landress to other physicians; spreading a rumor that Ms. Landress had herpes; calling Ms. Landress’s treating physician, Dr. Chen, for information about her; and accessing Ms. Landress’s medical records. According to Ms. Landress, Dr. Sandwith and Ms. Park were witnesses who could corroborate many of her allegations concerning Dr. Al-Dehneh. Both denied each and every allegation. Dr. Sandwith testified that he never saw Ms. Landress and Dr. Al-Dehneh together; denied talking to Dr. Al-Dehneh about Ms. Landress; denied ever seeing or hearing Dr. Al-Dehneh harass or act inappropriately with Ms. Landress or any other hospital staff; and denied hearing rumors concerning Ms. Landress, Dr. Al-Dehneh, their alleged relationship, or that Ms. Landress had herpes. Ms. Park, who worked with Ms. Landress: testified that she never heard any rumors that Dr. Al-Dehneh was having sexual relationships with other women; denied witnessing Dr. Al-Dehneh tell Ms. Landress that he was going to call Ms. Landress’s husband and offer $5,000 for her; denied talking with Ms. Landress about being sexually harassed; denied hearing rumors about Ms. Landress and Dr. Al-Dehneh; denied hearing rumors that Ms. Landress had herpes; and denied telling Ms. Landress to stay away from Dr. Al-Dehneh. According to Ms. Landress, she also discussed her allegations of sexual harassment with her orthopedic physician, Dr. Chen, on numerous occasions. Dr. Chen testified that during one of Ms. Landress’s appointments, I recall you telling me just occurrences at home, of what happened in the workplace between yourself and a certain physician on staff at the – at the Walton Beach Medical Center. Yeah, and there was situations or there were occurrences that were – upsetting to you and they were providing some sorts of distress. He further testified that Ms. Landress “spoke … about the herpes.” Dr. Chen testified that he may have heard FWBMC staff discussing the alleged herpes rumor, but could not recall from whom he heard those rumors, and admitted that the rumors could have come from Ms. Landress herself. Dr. Chen testified that he never witnessed Dr. Al-Dehneh acting inappropriately towards Ms. Landress, and that he never heard any other physician at FWBMC discuss any rumors concerning Ms. Landress or Dr. Al-Dehneh. FWBMC Investigation of Complaint of Harassment and Hostile Work Environment At the conclusion of the August 30, 2018, meeting, Ms. Sanders immediately investigated Ms. Landress’s claims by interviewing Dr. Al-Dehneh that same day, and by interviewing other employees who could potentially substantiate Ms. Landress’s claims. However, Ms. Sanders was unable to find any witness who corroborated any of Ms. Landress’s allegations. Ms. Sanders testified, as part of her investigation, that she determined that Dr. Al-Dehneh did not have any remote access or log-in capabilities to access Ms. Landress’s computer. Ms. Sanders further testified, as part of the investigation, that she confirmed that Dr. Al-Dehneh never had access, nor tried to access, Ms. Landress’s medical records. During the investigation, Ms. Ristom testified that she offered to move Ms. Landress’s office to distance her from the individuals allegedly involved, including Dr. Al-Dehneh. Ms. Landress declined this offer. Ms. Sanders completed her investigation of Ms. Landress’s claims of sexual harassment and hostile work environment on September 18, 2018, and informed Ms. Landress that FWBMC could not substantiate her claims. Subsequent Events On September 20, 2018, Ms. Landress suffered an anxiety attack and went home from work early. When Ms. Sanders and Ms. Ristom learned of the anxiety attack, they attempted to speak with Ms. Landress in her office and told her to take the weekend off to deal with her anxiety. Both Ms. Sanders and Ms. Ristom testified that Landress did not attribute her anxiety attack to the alleged past sexual harassment incidents with Dr. Al-Dehneh, nor any new incidents of harassment. Ms. Landress’s testimony concerning the anxiety attack and subsequent leave was as follows: Predominately because I really wanted to come home and take medication because I couldn’t stand – I – I just couldn’t get past people in the hospital constantly talking about me having herpes. I mean, it’s kind of like if you were walking in the building and that’s all you heard, you want to get out of there. As previously noted, the FWBMC investigation did not substantiate Ms. Landress’s allegation concerning hospital rumors that she had herpes. Further, there was no testimony or evidence presented at the final hearing, outside of Ms. Landress’s testimony, that confirmed this allegation. Ms. Landress soon returned to work and did not report another incident of harassment until March 2019. On March 1, 2019, Ms. Landress reported that a nurse practitioner, who she claimed worked for Dr. Al-Dehneh, took a photo of Ms. Landress on her cellphone when she walked by Ms. Landress’s office. Ms. Landress testified that she “assumed” the nurse practitioner took the photo for Dr. Al-Dehneh. Ms. Landress further testified that she never saw the photo. Ms. Ristom and Ms. Sanders met with Ms. Landress concerning this allegation, and Ms. Sanders investigated it. Ultimately, FWBMC was unable to substantiate this claim or that she was being harassed by Dr. Al-Dehneh or his nurse practitioner. Ms. Landress did not report any other incidents of harassment after March 1, 2019. Leave(s) of Absence FWBMC approved Ms. Landress for a paid leave of absence from June 10, 2019, until she resigned on October 4, 2019. FWBMC granted this leave for two separate reasons: for an orthopedic condition, and for a mental health condition. Initially, Ms. Landress was placed on leave for her claims of stress, anxiety, and post traumatic stress disorder related to the alleged harassment. Then, on September 9, 2019, Ms. Landress submitted a separate claim because of pain in her right elbow. Dr. Chen, Ms. Landress’s treating orthopedic physician, informed FWBMC that her anticipated return work date was October 7, 2019, with restrictions, such as “no repetitive use of right arm to include typing, mouse use, [and] writing.” After Dr. Chen cleared Ms. Landress to return to work, with restrictions, Ms. Sanders reminded Ms. Landress that she could not return until her mental health counselor also cleared her. Ms. Landress’s mental health counselor never cleared her to return to work. In July 2019—during her leave of absence for a mental health condition—Ms. Landress requested, to Ms. Ristom, the opportunity to work from home. FWBMC denied Ms. Landress’s accommodation request; Ms. Sanders testified: At that time we weren’t able to accommodate the work from home request. There was concerns around protecting patient medical records and her ability to work with the staff and the physicians when she needed to ask questions. On September 20, 2019, while Ms. Landress remained on leave, Ms. Ristom received an email from Q-Centrix, a third-party data management provider that collaborates with healthcare providers, such as FWBMC. The September 30, 2019, email requested that FWBMC terminate Ms. Landress as an employee so that Q-Centrix could employ Ms. Landress in a full-time position. Ms. Ristom forwarded this email to Ms. Sanders to investigate and did not reply to the September 20, 2019, email from Q-Centrix until FWBMC could confirm from Ms. Landress that it was her intention to resign her position with FWBMC. On September 27, 2019, Q-Centrix emailed another request to FWBMC to terminate Ms. Landress. Ms. Sanders testified that she spoke with Ms. Landress about this request. On October 4, 2019, Ms. Landress—who still had not received clearance to return to work at FWBMC from her mental health counselor— submitted a letter of resignation to Ms. Sanders. Her letter of resignation stated that she and her mental health counselor agreed that her “PTSD is too great to return.” Her letter further stated that because FWBMC denied her request to work from home, she had accepted a position with “another company.” The October 4, 2019, letter of resignation attached four additional pages of what Ms. Landress contends were the events that led her to resign. The first page listed the allegations of sexual harassment by Dr. Al-Dehneh that Ms. Landress discussed with Ms. Sanders and Ms. Ristom during the August 30, 2018, meeting. The remaining three pages listed various allegations that Ms. Landress did not report to FWBMC and did not include in her charge of discrimination with FCHR. Findings of Ultimate Fact Ms. Landress presented no persuasive evidence that FWBMC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by sex-based or disability-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sex-based or disability-based discrimination. Ms. Landress presented no persuasive evidence that FWBMC’s actions subjected her to harassment based on sex. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sexual harassment. Ms. Landress presented no persuasive evidence that FWBMC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Landress presented no persuasive evidence that FWBMC’s actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of hostile work environment. Finally, Ms. Landress presented no persuasive evidence that her working conditions at FWBMC were so intolerable that a reasonable person in her condition would have been compelled to resign. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of constructive discharge.
Conclusions For Petitioner: Jennifer L. Landress 7758 Ramona Drive Navarre, Florida 32566 For Respondents: Cymoril M. White, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Jennifer L. Landress’s Petition for Relief. DONE AND ENTERED this 29th day of December, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Tracey K. Jaensch, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 Jennifer Lynn Landress 7758 Ramona Drive Navarre, Florida 32566 Cymoril M. White, Esquire Ford & Harrison, LLP 101 East Kennedy Boulevard Suite 900 Tampa, Florida 33602
The Issue Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2013.
