The Issue Whether Respondent Employer committed an unlawful employment practice by discrimination on the basis of age and/or retaliation1/ against Petitioner, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Deanna L. Eftoda, was born on August 26, 1949. Respondent, HealthSouth Rehabilitation Hospital of Tallahassee (HealthSouth), is a healthcare facility providing both in-patient and out-patient rehabilitation services in Tallahassee, Florida. As such, it employs personnel designated as "exempt" and "non-exempt," pursuant to the federal Fair Labor Standards Act. Generally speaking, "exempt" employees are salaried employees, in managerial posts, who do not receive over-time pay by the hour, and "non-exempt" employees are regular, non- managerial employees, who are paid a set amount per hour up to 40 hours per week and time and a-half per hour for every hour above 40 hours that they work in the same 40-hour week. There are some exceptions to this federal compensation scheme which are immaterial to this case. At all times material, a “Nursing House Supervisor” or “RN House Supervisor” were interchangeable job titles. Petitioner was initially hired by Respondent on January 26, 2004, as an "RN-Baylor Nurse." The RN-Baylor position was a non-exempt position, and in that position, Petitioner's hourly pay rate was $28.00. Petitioner's hourly rate of $28.00, was very high for an RN-Baylor Nurse, but Petitioner's credentials are exceptional. Within days of her hire, Petitioner was asked whether she would take an RN House Supervisor position. Petitioner accepted the RN House Supervisor position, and a corrected personnel action form reflecting this change was prepared on January 30, 2004. Petitioner signed an acknowledgement of her acceptance of the House Supervisor position on February 22, 2004. Every House Supervisor employed by Respondent during Petitioner's period of employment was an exempt employee. The RN House Supervisor position that Petitioner accepted was an exempt position. Nursing House Supervisors traditionally worked the evening and night shifts, when there was no member of the hospital administration on duty. Without a member of the hospital administration on duty, the Nursing House Supervisor was the highest ranking management employee at the facility. While Petitioner was employed with Respondent as an RN/Nursing House Supervisor, Respondent simultaneously employed “Charge Nurses.” The duties of a Charge Nurse were similar to the duties of a Nursing House Supervisor. However, unlike Nursing House Supervisors, Charge Nurses traditionally worked the day shift, during which higher-ranking members of the facility’s administration were simultaneously on duty. In 2004, Respondent also employed a Charge Nurse on the weekend day shift(s) when at least one administrator was present for several hours. (This anomaly seems to be at least one element which confused Petitioner and led to this case.) Even so, unlike RN House Supervisors, all Charge Nurses were classified by Respondent Employer as filling non-exempt positions. Every Charge Nurse employed by Respondent during Petitioner's employment was classified as a non-exempt employee, eligible to earn time-and-a-half for overtime. Petitioner’s salary was not increased when she accepted the RN House Supervisor position, because her base salary (calculated at $28.00 per hour) was commensurate with the salary of other RN House Supervisors already being paid as managerial employees at straight salary. On the other hand, because Petitioner worked as an RN/Nursing House Supervisor on a “Baylor,” or weekend, shift, Respondent paid Petitioner a special compensation for being scheduled to work every weekend, with no weekends “off.” This special compensation took the form of Respondent’s paying Petitioner as if she had worked 36 hours per week, even though she was only scheduled for 32 actual hours of work per week. Petitioner believes that she worked a minimum of four additional hours per week, because it was her practice to come on shift an hour early and leave an hour late to set up and wind down the area and staff under her supervision as Nursing House Supervisor. She “guessed” there were some weeks when, between this practice and meetings she was required to attend, she worked 32 hours above the usual 40 hours per week. Her “best guess” was that she was working “two (additional) hours per eight-hour shift,” plus attending meetings which were not held during her shift(s), beyond her scheduled 32 hours, but Petitioner never worked straight eight-hour shifts. (See Findings of Fact 12-15, and 25.) A Nursing House Supervisor working the Baylor shift, or an RN-Baylor Nurse, normally worked two twelve-hour shifts on the weekend and one eight-hour shift during the week. When Petitioner was hired by Respondent in January 2004, she was completing a second doctoral degree. In order to accommodate Petitioner's work on her dissertation, Respondent had offered Petitioner an irregular shift pattern consisting of two sixteen- hour shifts on the weekends. Petitioner had accepted this scheduling accommodation. As RN House Supervisor, Petitioner was required to attend occasional mandatory meetings for Nursing Supervisors and other nursing staff. These meetings were held during the week, and usually, but not always, between 5:00 and 6:00 p.m. This meeting time was more convenient for employees regularly working the weekday shift immediately before 5:00 p.m. or coming on shift immediately after 6:00 p.m., than for staff on other shifts, but no age or retaliation component existed with regard to Petitioner or anyone else on other shifts. Petitioner also was required once or twice to attend several hours of computer classes in a single day and other training, but so was everyone else on staff. Because the meetings were not on the weekends during the hours Petitioner would normally work, Petitioner’s attendance at the mandatory weekday meetings upset Petitioner's personal plans for study, research, and writing her doctoral dissertation, but there is no evidence she was singled out for this inconvenience. Petitioner claimed herein that she was entitled to be paid overtime for coming to "work" for meetings and classes. Because her Nursing House Supervisor position was an exempt position, Petitioner was not paid overtime for attending these mandatory meetings and classes, but no other exempt employees were paid overtime for attending these meetings and classes outside of their normal working hours, either. Respondent's policy does provide that if a Nursing House Supervisor works an additional shift as a "floor nurse," separate and apart from his/her regularly scheduled shifts as a House Supervisor, then that Nursing House Supervisor can be granted additional pay for that additional shift during which he/she works as a floor nurse, even though the House Supervisor position is that of an exempt employee. In order to be granted this additional pay, the Nursing House Supervisor must fill out an "Additional Pay for Exempt Employees" request form and submit the form to management for prior approval. The mandatory weekly meetings that Petitioner was required to attend as a part of her Nursing House Supervisor duties did not qualify as a full additional shift, for any employee. Petitioner received a memorandum dated April 12, 2004, explaining this. In fact, When Petitioner filled out the correct form for work as a floor nurse, she was paid at the $27.50 per hour rate for a floor nurse. She was not paid when she filled out such a form for mandatory staff meetings, classes, and training sessions. Petitioner represented that throughout her employment by Respondent, she repetitively and persistently inquired about how her pay was being calculated and why the Employer did not calculate it the way she thought it should. She also claims to have repeatedly requested a different calculation of her pay and leave accruals on the basis of her beliefs and desires, but at the time she made no formal claim or discrimination complaint related to these inquiries and requests. In her testimony, even Petitioner described what she was doing as “negotiating” her salary. Throughout her employment by Respondent, Petitioner was cited by management for performance problems, including but not limited to difficulty in dealing with staff; poor management style; poor judgment in dealing with her supervisors and subordinates; creating confusion and chaos for staff on her scheduled shift by her confrontational manner; failing to properly address performance concerns with staff on her scheduled shift; and failure to take responsibility for her own actions. Giving Petitioner the benefit of the doubt, some of her friction with management and staff may have arisen because of her complaining that evaluators did not observe her for an entire shift; because she mis-read management’s instructions on how to code her timesheets as a requirement to falsify them; because she perceived that Respondent’s staffing levels occasionally fell below matrix, and she then created turmoil by calling in extra staff, whereas her superiors did not share her interpretation of the matrix requirements or the staffing events themselves; because she blamed the preceding shift for cleanliness issues; because she perceived herself undervalued for her extensive nursing experience; because she perceived herself personally opposed and ridiculed by a nurse of lesser or equal rank (Mandar); and because she did not believe that her superiors backed her up sufficiently and/or did not afford her the appropriate discretion in her interactions with subordinates. Petitioner objected to Respondent’s chain of command, which had her reporting to Ms. Roberts, Nurse Manager. Petitioner felt she should report directly to the Director of Nursing, her “two-up” supervisor. However, none of these disputes rose to the level of a protected activity under Chapter 760.10(7), Florida Statutes (see Finding of Fact 35), or related to Petitioner's age in any way. From Respondent's perspective, its administration received a myriad of complaints from Petitioner's supervisors, peers, and subordinates, regarding Petitioner's management style and performance. Some of Respondent's employees threatened to quit if they were forced to continue to work under Petitioner's supervision. Petitioner testified that in July 2004, she had polled her subordinates and asked them to indicate that they had “no problems” with her management style. Then she presented the list of subordinates to her superiors. This could have legitimately been viewed by Respondent’s management as Petitioner’s insubordination to them and/or intimidation of the polled subordinates by Petitioner. Respondent’s Nurse Manager and Petitioner’s direct supervisor, Barbara Roberts, felt that she was being required to spend an inordinate amount of her time dealing with Petitioner's problems. As a result of these problems, Petitioner was placed on probation on September 10, 2004. Petitioner challenged this probation, and a review was conducted by Respondent's management. Despite the fact that the complaints concerning Petitioner's management style and performance came from various sources, Petitioner complained that Ms. Roberts was unfairly disciplining and harassing her. Respondent's management concluded that the attention Petitioner had received from Ms. Roberts was not improperly motivated, but was a result of personality conflicts between Petitioner and other employees. Some of the allegations against Petitioner were substantiated, but investigation into an allegation that Petitioner had coerced or threatened employees into working, only produced limited supporting documentation. In the absence of additional documentation, Lynn Streetman, Hospital Administrator, concluded that probation was not the correct level of discipline for Petitioner. (P-22) Ms. Streetman recommended that Petitioner's supervisor, Ms. Roberts, chalk the problems up to differences in management style and downgrade Petitioner’s probation citation to a "written warning." On September 30, 2004, the probation citation was replaced with a written warning citation. Also on September 30, 2004, six months after Petitioner’s initial hire and approximately five and a-half months after she accepted the exempt Nursing House Supervisor position, Ms. Roberts sent Petitioner a memorandum informing her that it was no longer operationally feasible to continue the irregular pattern of two sixteen-hour shifts on the weekend (R- 3).2/ Respondent's reason for this change was that for four hours of each day that Petitioner was scheduled to work, there was an overlapping period when two supervisors were on duty, and this duplication of supervisory personnel resulted in an unnecessary expense for Respondent. Ms. Roberts' memorandum informed Petitioner that it was operationally necessary for Petitioner to begin working the traditional Baylor-RN's two twelve-hour weekend shifts and one eight-hour shift during the week, beginning with the October 16-17, 2004, weekend. This managerial decision obviously inconvenienced Petitioner for purposes of completing her doctoral dissertation, and she contends the decision was “retaliatory.” However, the change had been in discussion with management before September 30, 2004. Immediately after her probation was down-graded to a written warning, Petitioner asked for a weekend off, which was granted. Because she took a weekend off at that time, Petitioner had one less weekend to use later in December 2004. (See Finding of Fact 36.) Approximately October 17-18, 2004, when her new shift arrangement was beginning, Petitioner's supervisors again sought to put her on probation, due to a series of complaints by staff similar to the previous ones. Ms. Roberts and other superiors believed Petitioner distorted common conversations and created chaos on her shift by misinterpreting in her conversations with her subordinates the instructions her superiors had given her. In accord with its policy, Respondent launched a second investigation into Petitioner's alleged misconduct. On December 11, 2004, prior to conclusion of the second investigation, Petitioner sent an e-mail to Ms. Roberts and to Respondent's Human Resources Director, Jackie Chaires, requesting that her status be changed from full-time Nursing House Supervisor to "PRN," or "as needed," status. Petitioner's e-mail stated, I believe I have 'too many irons in the fire.' With my dissertation and numerous meetings outside my 32 hours, I find myself run down. To remedy this situation I am willing to wait until January 17, 2005 for this transition to begin. Please advise as to the salary changes. Petitioner believed that by giving four weeks’ notice before the date she wanted to “go PRN” she would be entitled to a payout of “personal time off” (PTO). However, due to subsequent events, she was not entitled to an "in cash" payout of PTO. (See Findings of Fact 59-60.) Respondent's policy provided that at any time an employee moved to a new position, he/she was placed on a 90-day mandatory probation to assess his/her performance in that new position. Because Petitioner was to be placed on a mandatory 90-day probation at the time that her status changed to PRN, there was no need to also place Petitioner on probation due to the conclusions of the second investigation into her alleged misconduct. However, Ms. Streetman instructed Ms. Chaires and Ms. Roberts to meet with Petitioner to go over the various performance problems that Petitioner was experiencing, and to inform Petitioner that continued poor performance in these areas during her PRN probationary period could result in disciplinary action up to, and including, termination. This meeting took place on December 15, 2004, and led to a rebuttal by Petitioner on December 29, 2004. (See Finding of Fact 34.) Petitioner previously considered moving to PRN status during February 2004. Petitioner also claimed that in March or April 2004, she had requested to be moved back to an RN-Baylor Nurse position, and that Ann McElreath, Director of Patient Care Services/Director of Nursing, told her that she could not make such a move without suffering a 45-percent decrease in compensation. Ms. McElreath testified that she did not remember any such request from Petitioner, and that she never told Petitioner that Petitioner would suffer a 45 percent decrease in pay if she moved back to a Baylor-RN position. Ms. McElreath further testified that she would have no reason to make such a statement to Petitioner, because she was not involved in any way in setting salaries. In light of the differential between part-time and full-time pay schedules, as discussed hereafter (see Findings of Fact 38 and 58), and the complexity of Respondent Employer’s other pay categories, coupled with the complexity of Baylor status, one can see how Petitioner misunderstood her situation, but her testimony evidences a clear misunderstanding of how Respondent calculated salaries, as well as a misunderstanding of the effect of designating exempt and non-exempt positions. On December 29, 2004, Petitioner sent a memorandum to Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath, requesting to rescind her request to move to PRN status and requesting to finish another six months as House Nursing Supervisor; complaining about “harassment” by Ms. Roberts due to Ms. Roberts’ telephone calls reminding Petitioner to attend meetings and Ms. Roberts’ “insulting” Petitioner’s professional abilities by not seeing/taking Petitioner’s side of many issues with staff. Petitioner requested to begin “dispute resolution.” At no point in this memorandum did Petitioner mention anything about alleged discrimination on the basis of age. At no point during any investigation, nor at any other time, did Petitioner allege that she was being discriminated against based on her age. She did allege harassment by her immediate supervisor, Ms. Roberts, but this was in the nature of challenging Respondent’s basic chain-of-command decisions; Ms. Roberts' not permitting her sufficient discretion; and Petitioner’s belief that only Petitioner could interpret Center for Disease Control (CDC) requirements regarding cleanliness and restrictions on the employment of coughing personnel and Occupational Safety and Health Act (OSHA) staffing requirements with regard to scheduling additional staff and instructing staff concerning these issues. Yet, Petitioner has never posed any complaint directly alleging violations of any federal or state regulation besides her “exempt” versus overtime issues, which she raised for the first time, herein. Petitioner wanted to take off December 31, 2004, and January 1, 2005 (New Year’s Eve and New Year’s Day), and she had been authorized in advance to do so. However, that authorization was rescinded when management discovered that she had already used the three weekend leaves to which she was entitled and that there might be staffing problems for the weekend period requested. (See Findings of Fact 26 and 54-57.) Petitioner had already made arrangements for her personal activities, and badgered management by e-mail to give her one or the other day off. Management ultimately let her have one of the days off, despite its “only three weekends” policy. Due to Petitioner’s on-going performance problems; management’s continuing concerns about her ability to effectively function as Nursing House Supervisor raised in the second misconduct investigation; and the patient safety concerns raised by her admission that she felt she had too many demands on her time, Respondent's management declined to allow Petitioner to rescind her request to move to PRN status. On January 5, 2005, Ms. Chaires told Petitioner, and on January 10, 2005, Ms. Chaires sent Petitioner a formal acknowledgement, of Respondent's acceptance of Petitioner's request to move to PRN status, effective January 17, 2005. On January 12, 2005, Ms. Chaires sent Petitioner an e- mail communication outlining the Respondent Employer’s pay rates for PRN status/service. Because Petitioner would be moving from a full-time House Nursing Supervisor position to a part-time PRN position, Ms. Chaires informed Petitioner that there would be a reduction in her salary from $28.00 per hour to $21.00 per hour. Ms. Chaires testified that it was customary for an employee moving from a full-time House Supervisor position to a PRN position to experience a reduction in pay. Petitioner claimed she was discriminated against because she received no merit increase at the end of 2004. She believes the lack of merit increase constituted retaliation for her obtaining the rescission of probation on September 30, 2004. Actually, Respondent’s employees undergo performance evaluations approximately every October. According to Respondent's policy, if an employee is on probation at any time during the third- quarter (July, August, September) of the calendar year, that employee is not eligible for a merit increase in connection with that year's October performance review. Respondent considered Petitioner ineligible for a merit raise at the end of 2004, because she had been on probation in September 2004; because there was a second investigation into Petitioner's performance and alleged misconduct that continued at least until December 15, 2004; and because Petitioner had requested to change her status to PRN. Because Petitioner’s probation was rescinded on the last day of September 2004, she technically was not barred from a merit increase due to being on probation in the third quarter, but she continued to be in the turmoil of some sort of disciplinary investigation until at least December 15, 2004. Respondent may have not followed the letter of its policy, but it maintained that policy’s spirit and purpose in not rewarding with a merit increase an employee who was subject to discipline at any moment. Petitioner also has not demonstrated that she was eligible for a merit increase based on meeting or exceeding performance standards. There is no credible evidence that the lack of an evaluation, the contents of an evaluation, or the lack of a 2004 merit increase in pay for Petitioner, constituted discrimination against her on the basis of her age or in retaliation for any protected activity. On January 14, 2005, a Friday, Petitioner had a friend phone Ms. Roberts on her behalf. The friend informed Ms. Roberts that Petitioner had undergone surgery that same day and would not be able to work as scheduled on the upcoming weekend. When Ms. Roberts inquired as to what kind of surgery Petitioner had undergone, the speaker would not give that information to Ms. Roberts. Ms. Roberts informed the caller that Petitioner should call Respondent to discuss her expected recovery time and her availability to return to work. Petitioner, who testified that she had listened to the foregoing conversation, described Ms. Roberts as “rude,” and the phone call may, indeed, have been acrimonious, in that the caller insisted on Petitioner’s right to medical privacy and Ms. Roberts wanted some detailed explanation why Petitioner was unable to report for work and why Petitioner was giving such short notice for her weekend shift(s), if she had not been in an accident and if she had elected the surgery in advance. At hearing, Petitioner’s explanation for her inability to work her last House Supervisor shift(s) covering January 14, 15, and 16, 2005, was that she had elected minor surgery with the intent to return to work her regular shift, but the procedure had turned out to be more debilitating than she had expected, so she could not return to work as scheduled. Also by date of January 14, 2005, Petitioner submitted an application for PRN employment with a different health care provider, Interim Healthcare. This date was a little more than a month after Petitioner had requested PRN status with Respondent; a little more than two weeks after Petitioner had sought to rescind that request; and two days after Respondent had declined in writing Petitioner's PRN rescission request. It was three days prior to Petitioner's scheduled move to PRN status with Respondent on January 17, 2005, pursuant to her accepted request. There was nothing to prohibit Petitioner from signing-up for PRN work with multiple health care providers. Because Petitioner did not show up for her last three scheduled shifts (two days) as Nursing House Supervisor, Respondent's policy required Petitioner to provide a doctor's note releasing her to return to work before Respondent would place her on PRN duty. Petitioner never provided Respondent with a doctor's note releasing her to return to work. Petitioner's testimony, that Ms. Chaires had told Petitioner on some previous occasion that as an "exempt" employee Petitioner did not need a doctor’s note for her absences, is not credible upon the record as a whole. It also is immaterial whether Petitioner's absence for her last three shifts/two days equate with "three consecutive days' absence," per Respondent’s policy on doctors’ notes, because more than three days passed without any word from Petitioner in response to Ms. Robert’s January 14, 2005, instructions by telephone. Respondent’s witnesses maintain that after January 14, 2005, Petitioner never initiated contact with Respondent in any way to discuss her availability for work, and that Ms. Streetman first phoned Petitioner in March 2005, to determine whether she was returning to work as a PRN. Petitioner claims that Respondent did not call her for any PRN work until May 2005, and therefore, in effect, Respondent constructively terminated Petitioner’s employment. There also is some divergence in testimony whether or not Respondent mailed Petitioner a package of materials with instructions that she must complete and return those materials before Respondent would call her for PRN duty, in March or at any other time. However, there is no dispute that during May 2005, Ms. Streetman, as acting interim Human Resources Director for Respondent, had telephone contact with Petitioner to coordinate Petitioner’s return to work as a PRN nurse. During this conversation, Petitioner informed Ms. Streetman that she would not return to work for Respondent as a PRN nurse under any circumstances. Petitioner stated that she would only work for Respondent if: Petitioner were returned to the position of full-time House Supervisor; Petitioner would only work a 16-hour shift on the weekends; and Ms. Streetman would set up a meeting with herself, Petitioner, Ms. Roberts, and a corporate representative of Respondent to discuss the resolution of various issues Petitioner wanted addressed. These issues were much as set out previously. (See Findings of Fact 17-19 and 35-39.) Age does not seem to have been one of Petitioner’s issues. Petitioner also indicated that she had not received the PRN packet of information that Respondent maintains it had sent her. Ms. Streetman immediately forwarded a copy of the PRN package to Petitioner. Although Petitioner provided a copy of a current CPR card to Respondent in May of 2005, she did not provide a doctor's note releasing her to return to work, her executed PRN paperwork acknowledging her duties and responsibilities as a PRN nurse, or an executed acknowledgement of Respondent's HIPPA policies and procedures, all of which Respondent required before putting Petitioner on its PRN status/phone list. On or about May 24, 2005, Ms. Streetman once again contacted Petitioner and informed her that she was unable to bring Petitioner back to work under the conditions that Petitioner had previously outlined, but Respondent was willing for Petitioner to work as a PRN nurse. Once again, Petitioner informed Ms. Streetman that she would not return to work as a PRN nurse under any circumstances. Accordingly, at that time, Ms. Streetman terminated Petitioner. During her employment with Respondent as a Nursing House Supervisor, Petitioner accrued PTO, in accordance with her position and length of service. As a Nursing House Supervisor, Petitioner should have accrued PTO at the rate of 7.69 hours of accrued PTO per two week pay period, which corresponds to the PTO accrual schedule for staff employees. However, due to a clerical error by Ms. Chaires, Petitioner actually had been allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per two-week pay period, which corresponds to the PTO accrual schedule for department head employees, even though as Nursing House Supervisor, Petitioner was not a department head. Respondent's policy in 2004, permitted all Baylor, or weekend, employees of Respondent to expend PTO hours on no more than three weekends per year. Because Petitioner worked a Baylor, or weekend, schedule as Nursing House Supervisor, Petitioner was limited to using PTO for three weekends per year. Petitioner signed off on, and acknowledged, this three weekend limitation. Although this policy limited the weekend days on which Petitioner was entitled to use her accrued PTO, Petitioner was entitled to use her accrued PTO for any weekday shifts for which she was scheduled after September 30, 2004, when Ms. Roberts informed her that it was operationally necessary for her to work at least one eight-hour shift during each week. During 2004, Petitioner used 171 hours and 15 minutes of PTO, and all three of her allotted weekends off as a Baylor employee of Respondent. (See Findings of Fact 26 and 36.) Later in 2005, Respondent re-examined its PTO leave policy. In order to compete for staff with other local health care providers, Respondent changed the number of allowed weekend PTO days for its Baylor employees from three to four weekends. However, this increase in the number of weekend leaves permitted for Baylor employees did not affect Petitioner, because her request to move from full-time Nursing House Supervisor to PRN nurse had been granted, effective January 17, 2005, and the new leave policy was not retroactive. A PRN nurse occupies a part-time position. As a PRN nurse, Petitioner was not eligible to accrue or use PTO. On January 22, 2005, Petitioner’s PTO balance was 4.37 hours, meaning Petitioner had 4.37 hours of PTO available for use. The dollar value of Petitioner’s remaining PTO hours amounted to $83.09. According to Respondent's policy, an employee was eligible for a cash payout for his/her unused PTO hours upon voluntary resignation (including a voluntary employment status change) and/or involuntary lay-off if: (1) the employee had successfully completed his/her 90-day probationary period; (2) the employee provided Respondent with proper notice; and (3) the employee worked a minimum of four hours on his or her final scheduled day of work. Whether Petitioner successfully completed her probationary period as a Nursing House Supervisor is not at issue in this case. Sufficient notice of status change is not at issue in this case. (See Findings of Fact 29- 30.) Petitioner did not receive a cash payout for her 4.37 unused PTO hours on January 17, 2005, when she moved from a full-time Nursing House Supervisor position to a PRN nurse position, because she did not work the required four hours on her final scheduled day of work as a Nursing House Supervisor. Petitioner missed her final three scheduled shifts as a Nursing House Supervisor in January of 2004, and she did not work on the day that her employment with Respondent was terminated. whether one counts the status change date of January 17, 2004 or the final termination date in May 2005. (See Findings of Fact 45 and 52.) Therefore, Petitioner was not eligible for a PTO payout under Respondent Employer’s policy at the time her status changed to PRN nurse, January 17, 2005. Between January 14, 2005, and November 2005, Petitioner did not apply for any type of work so as to mitigate potential damages. After January 14, 2005, she had PRN status with Interim Healthcare, but she did not accept work from Interim until November 2005. During that period, she only attended classes and lived on her student loans. Petitioner had previously acquired at least a J.D. (law degree), two nursing degrees, and possibly another doctorate. With these credentials, she was certainly not “unemployable” during the interim of January-November 2005. Petitioner never complained to Ms. Roberts, her direct supervisor, that Petitioner believed that she was being discriminated against on the basis of her age. In 2004, Petitioner would have been 55, and Ms. Roberts would have been 51 years of age. Ms. Roberts never treated Petitioner any differently than any other Nursing House Supervisor. Ms. Roberts was not actively aware of Petitioner's age at any time during her employment. Petitioner never complained to Ms. McElreath, then- Director of Nursing and Petitioner's “two-up” supervisor, that Petitioner believed she was being discriminated against on the basis of her age. Ms. McElreath would have been 50 to Petitioner's 55 years of age at all times material. Petitioner never complained to Ms. Chaires, Director of Human Resources, that Petitioner believed she was being discriminated against on the basis of her age. No decision that Ms. Chaires made concerning Petitioner was motivated by Petitioner's age. Petitioner never complained to Ms. Streetman, Respondent's administrator, that Petitioner believed she was being discriminated against on the basis of her age. Ms. Streetman would have been 49 years of age, at all times material. No decision that Ms. Streetman made concerning Petitioner was motivated by Petitioner's age.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 22nd day of September, 2006.
The Issue The issue is whether Respondent, Lowe's Home Centers, Inc. (“Lowes”)1 committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2008),2/ by discriminating against Petitioner based on her gender or national origin (Hispanic) in its allowance of a hostile work environment, or by discharging Petitioner from her employment in retaliation for engaging in protected conduct.
Findings Of Fact Lowes is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. In November 2004, Petitioner, a Mexican-American female, was hired by Lowes to work at store number 2365 in Gainesville as a Commercial Sales Associate (“CSA”) in the Commercial Sales department, which serves contractors and large institutional customers. Petitioner’s primary duty was to assist customers in the selection, demonstration and purchase of products. At the time she was hired, Petitioner received from Lowes copies of the following documents: Lowes' Code of Ethics, Lowes' Equal Employment Opportunity Policy, Lowes' No Harassment Policy, and Lowes' Performance Management Policy 315 setting forth the company’s standards of conduct and discipline. These policies were in effect during the entirety of Petitioner’s employment at Lowes. Lowes' Code of Ethics specifically provides that employees “must maintain the confidentiality of information entrusted to them by Lowes or its suppliers or customers,” unless such disclosure is authorized by the company’s lawyers or is required by law. Lowes' Equal Employment Opportunity Policy provides that all reports and investigations of harassment “will be treated confidentially to the extent possible, and with the utmost discretion.” Lowes' Performance Management Policy 315 provides that unauthorized disclosure of company information is a “Class A violation,” which will normally subject an employee to immediate termination on the first occurrence. Petitioner’s allegations of harassment and hostile work environment center on a single Lowes co-worker, John Wayne Edwards. Mr. Edwards was another CSA in Commercial Sales. He had no supervisory authority over Petitioner and exercised no control over the terms and conditions of Petitioner’s employment. Petitioner has not alleged that Mr. Edwards subjected her to any unwanted sexual comments, sexual touching, or sexual advances. Petitioner’s factual allegations against Mr. Edwards involve three incidents. The first incident, in September 2007, was an argument between Petitioner and Mr. Edwards at work. Petitioner accused Mr. Edwards of taking a customer file from her. Mr. Edwards denied taking the file, pointing out to Petitioner that he had no reason to take her file. If Mr. Edwards wanted the information contained in Petitioner’s customer file, he could simply take it from the Commercial Sales department’s computer. Petitioner called Mr. Edwards a liar. Mr. Edwards denied being a liar. Petitioner said, “I’m going to get you.” Mr. Edwards asked Petitioner what she meant by that statement, and Petitioner called him coward. Mr. Edwards then said to Petitioner, “If you were a man, me and you’d go across the street right now and settle this.” Petitioner reported the incident to Lynette White, the Human Relations (“HR”) manager for Lowes store number 2365, alleging that Mr. Edwards had threatened to beat her up in the parking lot.4/ Ms. White investigated the matter, interviewing Petitioner, Mr. Edwards and two or three other CSAs who witnessed the incident. Ms. White concluded that Mr. Edwards had not threatened any physical harm to Petitioner, but that Mr. Edwards’ statement was nonetheless inappropriate. She counseled Mr. Edwards to take care in his workplace conversations so that no one could construe anything he said as a threat, and to avoid contact with Petitioner whenever possible. The second of the three incidents occurred on or about October 2, 2007. According to Petitioner, she was standing near a filing cabinet in Commercial Sales. Mr. Edwards was “talking and talking and talking,” “bragging about all sorts of stuff.” Petitioner told Mr. Edwards not to talk to her, but he continued in a very loud voice. Then, when he was finished bragging and talking, Mr. Edwards rushed toward the filing cabinet “like a football player” and hit the cabinet hard. Petitioner testified that Mr. Edwards hurt himself and ran and told management. Store managers came running to make sure that Petitioner was not hurt in the incident. Mr. Edwards had no recollection of such an incident. He stated that there are three CSAs and an assistant in an area that is 12 feet long and 42 inches wide, with a filing cabinet that is in use directly behind the computer work stations. It is unavoidable that people moving through such a space will touch or bump one another. Mr. Edwards was positive he would have excused himself if he inadvertently bumped Petitioner, and denied ever doing anything that could be construed as “charging” at the filing cabinet with the intention of hurting or frightening Petitioner. Ms. White investigated this incident, interviewing Petitioner, Mr. Edwards, and other persons who were in the area when the incident allegedly occurred. During her interview with Ms. White, Petitioner conceded that neither Mr. Edwards nor the file cabinet touched her. Ms. White asked Petitioner to show her how the incident occurred, using a file cabinet in Ms. White’s office. Petitioner was unable to show a scenario that, in Ms. White's words, “added up to someone coming towards you to attack you.” The two other employees who had been in the area saw nothing to indicate that Mr. Edwards made contact with or sought to harm Petitioner. Ms. White concluded that, at most, Mr. Edwards accidentally bumped the file cabinet while Petitioner was nearby. As to the third incident, Petitioner alleged that on three or four occasions in early 2008, Mr. Edwards approached her and, apropos of nothing, announced, “We need to build a fence around the Mexican border.” Petitioner testified that these bigoted comments were clearly intended to intimidate her and cast aspersions on her heritage. Petitioner took this complaint to Karla Daubney, then Lowes' HR district manager. Ms. Daubney investigated Petitioner’s complaint by interviewing Petitioner, Mr. Edwards, and other employees in Commercial Sales. Mr. Edwards denied making a comment about “building a fence around the Mexican border.” He testified that the only possible source for Petitioner’s allegation (aside from sheer invention) was a conversation he had with a male co-worker about the Iraq War. Mr. Edwards had stated his opinion that the United States would be better off bringing its soldiers home from Iraq and using the savings to shore up our borders with Mexico and Canada.5/ He had no idea whether Petitioner was within earshot during this conversation, and denied ever making anti-Mexican comments, whether or not they were aimed at Petitioner. Mr. Edwards testified that this allegation was particularly hurtful because he is the adoptive father of two Mexican children, a brother and sister. At the time Mr. Edwards adopted them, the girl was three years old and the boy was nine months old. The children are now adults. Mr. Edwards’ daughter is a surgeon, and his son is in the air-conditioning business. After her investigation, Ms. Daubney concluded that Petitioner’s allegations were unsupported by the evidence. Mr. Edwards was not disciplined for this incident. At the final hearing in this matter, Petitioner and Mr. Edwards testified about all three incidents. Petitioner produced two witnesses, neither of whom witnessed any of these events first-hand or had any clear recollection of the incidents as related by Petitioner. No witness other than Petitioner characterized Mr. Edwards as anything other than a good Lowes employee and a solid citizen. Far from allowing a hostile work environment, Lowes diligently investigated every accusation made by Petitioner. Mr. Edwards was by far the more credible witness, and was genuinely puzzled as to why Petitioner had selected him as the continuing focus of her ire. The evidence indicated that Petitioner had job performance issues that predated her odd vendetta against Mr. Edwards. She received an “Initial Notice” on November 6, 2006, for failure to follow up on various customer orders. On May 2, 2008, Petitioner received a “Final Notice,” the last step in Lowes' progressive discipline system prior to termination. Petitioner had used Lowes' confidential customer contact information to telephone a regular commercial customer, Justice Steele, at his home. Shortly after this conversation, Mr. Steele telephoned Charles Raulerson, the manager of store number 2365, to complain about Petitioner’s unprofessional conduct. Mr. Steele followed up the phone call with a letter, dated April 25, 2008, which stated as follows, verbatim: The evening of April 23, at approximately 6:30 P.M., I received a call from Rosie [Chavez] in Commercial Sales when I answered she proceeded to tell me that, she had heard John and I talking earlier. So I asked her what the problem was? At this point she started to tell me I had no right to critique her work, I tried to explain to her that I was quite unhappy that she had lost one order of mine and had mixed up another one in the same week. And had I known she was there I would have spoken to her face to face, at this point she became very argumentative and started telling me how she was the only person who did her job in commercial sales. And her co-workers where [sic] lazy and stupid that they should not even be there, personally I thought this was very very unprofessional on her part. Not to mention calling me at home considering I am in the store almost daily placing orders, getting estimates, etc. In the years I have been doing business with your company I always found the staff to be quite knowledgeable an courtesy I’m surprised that you would allow an employee to act in this manner. I’m aware you do your best to screen employees but if this issue is not addressed I will not continue doing any further business with your company. Thank you for your attention to this matter. In her meeting with Mr. Raulerson about Mr. Steele’s complaint, Petitioner asserted that her boss could not tell her what to do on her own time, and that Mr. Steele was lying about her phone conversation with him.6/ Mr. Raulerson attempted to explain that Petitioner was conducting Lowes business when she called Mr. Steele, and she was therefore a representative of Lowes whether or not the call was placed from the store. Petitioner continued to assert that she could do anything she wanted if she was not physically at the store. Mr. Raulerson issued the Final Notice and transferred Petitioner to the position of cashier in response to Mr. Steele’s complaint.7/ The transfer was a lateral move, involving no change in Petitioner’s employee status or pay. During the meeting at which the Final Notice was issued, Mr. Raulerson reminded Petitioner of Lowes' confidentiality policies and provided her with another copy of Performance Management Policy 315. The referenced Performance Management Policy would have allowed Mr. Raulerson to terminate Petitioner’s employment for her unauthorized use of confidential customer information. However, Mr. Raulerson decided to give Petitioner another chance to salvage her job, away from the Commercial Sales department.8/ On July 25, 2008, Mr. Raulerson received another complaint about Petitioner from Lowes customer Chris Bayne. Mr. Bayne was a registered nurse working in the emergency room at North Florida Regional Medical Center in Gainesville. On July 24, 2008, Petitioner phoned Mr. Bayne at his private cell phone number, which he had given to Lowes two years previously when buying lumber. Mr. Bayne was without knowledge of Petitioner’s grievances against Mr. Edwards, Mr. Raulerson and/or Lowes. Nonetheless, Petitioner caused Mr. Bayne to leave the emergency room in the middle of a procedure to take her phone call. Petitioner solicited Mr. Bayne to write a letter of character reference for her, to be used in a discrimination lawsuit against Lowes. Mr. Bayne had no idea what Petitioner was talking about. In an effort to get her off the phone and get back to his job, Mr. Bayne gave Petitioner his email address and told her to send any information via that route. After work, with more time to think about the call, Mr. Bayne became increasingly disturbed. He wondered how Petitioner had obtained his private phone number and began to worry about identity theft. The next morning, he telephoned Lowes and complained to Mr. Raulerson. Mr. Bayne later sent Mr. Raulerson a copy of the letter that Petitioner had emailed to Mr. Bayne. The letter read as follows: Hi. As many of you already know, I have been demoted to cashier. Mr. Justice Steele wrote a letter to Lowe's. According to Mr. Charlie Raulerson, store manager and Mr. Tom Bragdon, operation manager, Mr. Steele claimed that I called him on his personal time and that I argued with him. I always follow up on my orders. I overheard Mr. Steele tell someone that I lost his order. So I called him up to find out what happened and what is going on. I had informed Mr. Steele that I will be placing a copy of his estimate in front of his file folder because he had not paid for it yet. The copy was still there in front of his file folder. There was no argument. There were a couple of other things that were mentioned in which not a single word was brought up. I asked Charlie Raulerson the store manager for a copy of the letter and he refused to show me the letter because it was Lowe's property. I am defending myself. There is more than what you know is going on. I have been discriminated based on my national origin and my gender now for over eight months at Lowe's #2365 in Gainesville Florida on 13th Street. You are my fifth proof. I am knowledgeable about construction. I graduated from Building Trades. I loved my job and I loved the people. Please submit a character reference to Emily Davis, EEOC Investigator (Equal Employment Opportunity Commission) at Emily.davis@fchr.myflorida.com. For those who do not have e-mail, please mail reference to 2009 Apalachee Parkway, Suite 200, Tallahassee, FL 32301-4857. Tell her everything you know. Do not fear anything. The reference letter is not going to Lowe's. It is going to Emily Davis only. Everything is strictly confidential. Ms. Davis is currently investigating my case #15D200800721. Please keep me in your prayers. In addition, please give a copy of this letter to the prayer group at your church and ask them to pray for me. Please pass the word around because I did not get everyone’s phone number since I was immediately demoted to cashier on May 2, 2008, on a Final Notice. Please ask everyone to e-mail Emily Davis or write to her. Please help me and thank you for your help. Rosie At the hearing, Petitioner testified that she sent this letter to hundreds of people. As the text indicates, most of the recipients were current or former Lowes employees, but many were customers such as Mr. Bayne. None of the recipients had any personal knowledge of Petitioner’s allegations. Petitioner appeared to have no understanding that her actions were in clear violation of Lowes' confidentiality policies, not to mention common sense. Mr. Raulerson asked Ms. Daubney to investigate Mr. Bayne’s complaint. Ms. Daubney interviewed Petitioner in an attempt to understand why she called Mr. Bayne. Petitioner refused to answer Ms. Daubney’s questions. She insisted that her conversation with Mr. Bayne was none of Lowes' business. Mr. Raulerson testified that Mr. Bayne’s complaint provided more than adequate grounds for terminating Petitioner’s employment, but that he decided to give Petitioner yet another chance to turn her situation around and become a productive employee. Shortly after investigating Mr. Bayne’s complaint and learning that Petitioner had used Lowes' confidential business records to circulate her own complaint to hundreds of people, Ms. Daubney received a copy of a memorandum written by Linda Brown, Records Bureau Chief of the Alachua County Sheriff’s Office. Ms. Brown was the supervisor of Nanci Middleton, the wife of Larry Middleton, one of Petitioner’s co-workers at Lowes. Ms. Brown’s memo stated that she had received a telephone call from Petitioner seeking to discuss “an EEOC issue of discrimination” involving Mr. Middleton, and asking to speak with Ms. Middleton. Ms. Brown told Petitioner that it was inappropriate to contact Ms. Middleton at work about an issue unrelated to the Alachua County Sheriff’s Office. Petitioner testified as to her purpose in phoning Ms. Brown. Petitioner sought permission to eavesdrop on a proposed conversation between the Middletons, during which Mr. Middleton would somehow be urged by his wife to “tell the truth” about Mr. Edwards’ “fence around the Mexican border” statements. Petitioner wanted Ms. Brown to join her in eavesdropping on this conversation in order to serve as Petitioner’s witness in her discrimination case. Not surprisingly, Ms. Brown declined Petitioner’s proposition. Ms. Daubney concluded that Petitioner’s telephone call to Ms. Brown violated Lowes' confidentiality policies. In consultation with Ms. Raulerson, Ms. Daubney decided to terminate Petitioner’s employment with Lowes, effective August 8, 2008. The grounds for Petitioner’s termination were repeated customer complaints about Petitioner’s job performance and intrusions into customers’ privacy, and her repeated violations of Lowes' confidentiality policies despite numerous warnings. Petitioner’s position, repeated in her testimony at the hearing, was that Chapter 760, Florida Statutes, gave her the right to “defend” herself in any way she deemed appropriate, and to contact anyone who might help her, regardless of whether they had any knowledge of or connection to her disputes with Lowes. Petitioner refused to acknowledge that any of her actions had been inappropriate. Petitioner offered no evidence to establish that her employment was terminated because of her gender or national origin. Petitioner testified that her firing was unrelated to her national origin or her gender. Petitioner offered no credible evidence that Lowes discriminated against her because of her national origin or her gender, subjected her to harassment because of her national origin or gender, or retaliated against her in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence to support her factual allegations against Mr. Edwards. The evidence did not establish that Mr. Edwards threatened physical harm to Petitioner or made derogatory remarks to Petitioner regarding her national origin. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Lowes for terminating Petitioner’s employment. The evidence established that Petitioner’s First and Second Complaints were devoid of merit. The evidence established that Lowes showed great forbearance in not firing Petitioner well before August 8, 2008.
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 Lowe's Home Centers, Inc., did not commit any unlawful employment practices and dismissing the Petitions for Relief filed in these consolidated cases. DONE AND ENTERED this 31st day of August, 2010, 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 31st day of August, 2010.
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of race or sex, and if so, what remedy should be ordered.
Findings Of Fact Apalachee Center is a not-for-profit health center providing mental health and substance abuse services in the Big Bend region of North Florida, which employs over 15 people. One of its facilities is a 16-bed mental health residential facility in Tallahassee, Florida, primarily housing men who suffer from severe mental illness. Ms. Sandra Johnson, an African–American woman and Petitioner in this case, has been a Licensed Practical Nurse (LPN) since 1984. She began working for Respondent in 2009 as the only LPN on duty on “B Shift Days” from 7:00 a.m. to 7:00 p.m. at the Forensic Residential Program. Another LPN, Ana Degg, was a white woman who worked on the “A” shift, and was the lead forensic nurse and Petitioner’s acting supervisor, though she was not actually present during the shift Petitioner worked. Most of the residents in the facility in which Petitioner worked have been found incompetent by the criminal justice system and have been sent to the program by court order. Petitioner maintained their medications, monitored their health, and helped to ensure that they did not leave the facility. At the time she was hired, Petitioner was made aware of Apalachee Center’s policies prohibiting discrimination and had been advised to immediately report any suspected discrimination to the Human Resources Department. Ms. Candy Landry, the Human Resources Officer at Apalachee Center, is proud of Apalachee’s diversity record. Apalachee employs more African-Americans than whites. Ms. Degg had some conflicts with Petitioner immediately after they began working together, but later came to the conclusion that it was just a reflection of Petitioner’s personality. Ms. Degg said that she still continued to receive some staff complaints, mostly about Petitioner’s demeanor. She testified that Petitioner “came off as gruff.” Ms. Degg was very credible. Ms. Degg consulted Ms. Jane Magnan, Registered Nurse (RN) who was the Director of Nursing, and Ms. Jeanne Pope, the Director of Residential Services, as to the best way to handle the situation. Ms. Magnan and Ms. Pope each testified that they advised Ms. Degg to start with basic lines of communication and mentoring on a one-to-one level to see if the problem could be handled before anything went to the written stage. Ms. Degg provided some handouts on interpersonal relations and “soft skills” to Petitioner and her unit and tried to coach Petitioner on how to be a bit more professional in her interactions. Ms. Degg told Petitioner that staff was saying that Petitioner was rude and she asked her to talk to people a little differently. She said Petitioner responded by saying that that was “just the way she was.” Petitioner’s conduct did not change and complaints continued. Ms. Magnan, who had hired Petitioner, believed that Ms. Degg found it difficult to discipline Petitioner. Ms. Magnan also believed there was some resistance from Petitioner in acknowledging Ms. Degg, a fellow LPN, as Petitioner’s supervisor. Petitioner had no “write–ups” from the time of her employment at Apalachee in August or September of 2009 until January of 2011. On January 21, 2011, Petitioner was presented a memorandum dated January 7, 2011, to document a Written Supervisory Session on two incidents. First, the memorandum stated that Petitioner had been counseled for failure to give a report to the oncoming nurse who had arrived late for her shift. Second, it stated that Petitioner had been counseled for being rude and unprofessional in a telephone conversation with the Dietary Supervisor. The memorandum was signed by Petitioner and by Ms. Degg. Ms. Degg testified that in response Petitioner had denied that she had failed to give a report to the oncoming nurse, but that the other staff people had corroborated what the oncoming shift nurse had told her, so she believed it had happened. At hearing, Petitioner continued to deny that she had failed to give a report to the oncoming nurse and denied that she had been rude or unprofessional in her conversation with the Dietary Supervisor. In the months following the January “write-up,” Ms. Degg did not notice any change in Petitioner’s demeanor and continued to receive complaints. She noted that she did not personally consider Petitioner’s behavior to be rude, but others did, and she could understand why. On May 18, 2011, Petitioner was presented a memorandum dated May 10, 2011, to document another Written Supervisory Session. The memorandum indicated that Petitioner had been unprofessional in communications to a Mental Health Assistant (MHA) whom Petitioner supervised. It stated that Petitioner had used phrases such as “shut up” and “get out of my face” to the MHA and that Petitioner had previously been counseled regarding this issue. The Memorandum was signed by Petitioner and by Ms. Magnan and Ms. Pope. Ms. Magnan and Ms. Pope offered Petitioner training and assistance. On the memorandum, Petitioner wrote that she did not agree with the statement and that she was willing to learn. On May 27, 2011, Petitioner’s Employee Performance Evaluation for the period April 23, 2010, through May 15, 2011, was presented to Petitioner. It indicated “Below Performance Expectations” or “Needs Improvement” in several areas, including supervision of MHAs, training of staff, unit management, acceptance of responsibility, and attitude. Hand-written notes by Ms. Magnan and Ms. Dianne VanZorge, the RN supervising the forensic unit, commented on difficulties in communicating with staff, compromised staff morale, and lack of leadership. The report noted that various employees had brought Petitioner’s attitude to the attention of the Program Director and Director of Nursing. The evaluation was signed by Petitioner, Ms. Magnan, and Melany Kearley, the Chief Operations Officer. In conjunction with this unfavorable Employee Performance Evaluation, and in accordance with Apalachee policy, Petitioner was placed on a Corrective Action Plan, a 60-day period of Conditional Probationary Status. The memorandum advising Petitioner of this action explained that Petitioner should immediately take action to maintain a friendly and productive work atmosphere, demonstrate respect and courtesy towards clients and co-workers, and demonstrate initiatives to improve Petitioner’s job and the program. The memorandum advised that any further non-compliance could result in disciplinary action or termination of employment. Petitioner’s supervisor was changed to Ms. VanZorge. Petitioner knew Ms. VanZorge because they had worked together many years earlier. Petitioner was advised in the Corrective Action Plan that Ms. VanZorge would meet with her on a weekly basis to provide any needed assistance. At the time Petitioner was placed on probation, Ms. Magnan testified that Petitioner became angry. Petitioner asked if they wanted her to quit. Ms. Magnan encouraged Petitioner not to quit, telling her that that “we are going to work this out.” Ms. Magnan and Ms. VanZorge testified that they made sure that Petitioner acknowledged that resources and coaching were available to help her. Petitioner testified that leadership, nursing management, and supervisory resources were not subsequently provided to her as promised. On June 29, 2011, Mr. Alphonzo Robinson, an African-American MHA who worked under Petitioner’s supervision, submitted complaints about Petitioner to Ms. VanZorge and Ms. Pope. Ms. VanZorge and Ms. Pope then met with Petitioner regarding these complaints. A memorandum documenting the meeting with Petitioner, prepared the same day, states that an MHA reported that Petitioner had eaten a resident’s lunch. The MHA alleged that the resident had gone out on a morning community pass, asking staff to save his lunch for him until he returned. The memorandum states that when the resident returned, the MHA went to get his lunch for him, only to find Petitioner eating the last of the resident’s food in the staff kitchen. The MHA indicated that Petitioner denied eating the resident’s lunch, saying that it had been thrown away, and directed the MHA to give the resident another patient’s meal instead. Only an empty tray without food was found in the garbage. The MHA noted that another patient’s lunch could not be substituted because the first resident was diabetic and had special dietary needs. The memorandum also indicates that several other complaints were made against Petitioner by the MHA and discussed with her at the meeting. It was alleged that the Petitioner was continually rude to staff, asked residents to run errands for her, left the commode dirty with urine and feces, and used her hands to get ice from the ice machine. The memorandum noted that at the meeting, after an initial denial, Petitioner finally had admitted that she had eaten the resident’s lunch. It also noted that Petitioner had admitted that “a while back” she had asked residents to get Cokes for her, but that now she drank water. The memorandum concluded by noting that the expectations on Petitioner’s Corrective Action Plan had been reviewed, and that it was further discussed that Petitioner was not to eat any resident meals or ask them to perform errands. Petitioner had been instructed to buy a meal ticket or bring her own, clean up after herself, and adhere to infection control policy and universal precautions. At hearing, Ms. VanZorge testified that during the meeting Petitioner admitted having eaten the resident’s lunch, but stated she had not done that for a long while prior to that. Ms. VanZorge stated that Petitioner also admitted she had gotten ice with her hands once. Ms. Pope testified that Petitioner had initially denied eating the resident’s food, but then later during the course of the meeting had admitted that she had eaten it, and also admitted that she had sent residents to run errands for her. MHA Kim Jenkins, a white woman and the second MHA under Petitioner’s supervision, testified that she knew nothing about the allegations that Petitioner ate a resident’s lunch. She testified that the bathroom was a unisex bathroom and that Petitioner did leave it in an unsanitary condition almost every time she used it, although she had been too embarrassed for Petitioner to ever discuss that with Petitioner. Ms. Jenkins said she did try to discuss all of the other recurring issues with Petitioner. She testified that Petitioner was rude on a daily basis. She testified that she had seen Petitioner going through other staff members’ mail and opening it. She testified that Petitioner did get ice with her bare hands on several occasions. On cross-examination, Ms. Jenkins stated that she did not document any of these incidents and could not remember dates on which they occurred. Pressed to provide dates, Ms. Jenkins testified that the only approximate date she could remember was the time that Petitioner sent a client with a staff member to get two hot dogs for Petitioner and the client had ended up paying for the hot dogs. Ms. Jenkins said that she knew this occurred in October because Ms. Jenkins had been assigned to the unit for only about two weeks when it happened. Ms. Jenkins testified that she clearly remembered when this occurred because Ms. Jenkins had been “written up” by Petitioner shortly afterwards for stopping at a McDonald’s drive–through on the way back from a client’s doctor’s appointment to allow the client to buy some ice cream. Ms. Jenkins testimony was very credible. Petitioner testified at hearing that the allegations in the June 29, 2011, letter of Alphonzo Robinson were not true. She testified that she did not eat a patient’s food, never asked patients to buy sodas or candy for her, never left urine and feces on the toilet seat, and that he never caught her sleeping on the job. She testified that it was a public bathroom, and noted that anyone could have left it in that condition. She also stated that someone should wonder, “[W]hy was Alphonzo Robinson in ladies’ bathroom watching toilet seats? Apparently he needs to be monitoring the patient and not the lady bathroom.” Petitioner noted that in all of the allegations against her, “[I]t is their word against mine.” In a memo dated July 1, 2011, to Ms. Kearley, Ms. Pope recommended the termination of Petitioner’s employment with Apalachee Center. Ms. Magnan, Ms. VanZorge, and Ms. Pope were unanimous in this recommendation. On or about July 6, 2011, Ms. Pope accompanied Petitioner to the office of Ms. Candy Landry, the Human Resources Officer, where Petitioner was informed that her employment was terminated. Ms. Landry testified that Petitioner had violated policies of Apalachee and that the disciplinary process and termination of employment with respect to Petitioner had followed standard procedures. Ms. Landry testified that Petitioner’s replacement was also African-American. Petitioner filed a complaint with the Florida Human Relations Commission (Commission), alleging that Apalachee Center had discriminated against her based upon her race and sex on August 15, 2011. Her complaint alleged that non-African- American employees had never been disciplined without reason, as she had been. Her complaint stated an employee had made unwelcome comments that she was “fine,” “sexy” and “beautiful.” On December 20, 2011, Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings. At hearing, Petitioner presented no evidence regarding similarly situated white employees. Petitioner presented no evidence that anyone ever made comments that she was “fine,” “sexy” or “beautiful.” She did testify that she made a note on June 20, 2011, regarding Alphonzo Robinson. Her testimony was as follows: Okay. Ready for Alphonso Robinson. This is what he states, “I’m looking for a wife. Bring your friend down here so I can look at her.” I informed Robinson to sit in day room with client. Let Kim Jenkins come from back there with the men. He states, “I don’t want to deal with the men. When I worked at Florida Hospital, we punish inmate.” I told him we don’t do that here. Social Service case managers do that. Group coordinator recommend –- group coordinators recommend treatment, member, nurse, case manager, and Ms. Pope. Robinson state, “I used to be a man that – that – I used to be a man that a husband was having problem with sex, I took care of his wife.” I stopped talking to him and just restrict everything to work only with Mr. Alphonzo Robinson. I gave this note to Ana Degg. I asked her please to address it with Ms. Pope. I never heard anything else about that. I did my job as I was told. I went by the instructions what the facility asked me to do. Petitioner testified that she prepared the note with this information on June 20, 2011, and gave it to Ms. Degg. This would have been a bit more than one week prior to Mr. Robinson’s complaints about her performance. Under cross-examination, Mr. Robinson denied that he had been sleeping on the job or had made inappropriate sexual remarks. He denied that he made the allegations against Petitioner because he was fearful he would be terminated and was attempting to get Petitioner fired first: Q You said – you made sexual statements, you told me that you had a new lady, that her husband had problems with sex, and you took care of the lady. After that I learned that, to stay out from around you, because I am a married lady. I have been married for 37 years. I don’t endure stuff like that. So after that, then later on you was in the room and you made a sexual comment. You – I said that is inappropriate, that’s not the kind of behavior – we do not come to work for that kind of behavior. * * * Q So Alphonzo – A Yes. Q -- after you made that comment, and then you said those statements, and then after that I approached you and told you that you cannot be sleeping at the desk, and then you decided to make these statements, to go to Dianne, Kim’s friend and all that, so they can get me fired before you get terminated, is that not true? A No, that’s not. Q You had never been sleeping at the desk? A No, I haven’t. There is no evidence that Petitioner mentioned the note or showed it to anyone at the Florida Commission on Human Relations in connection with her complaint of discrimination. She did not provide a copy of the note to the Division of Administrative Hearings or to Respondent prior to hearing. Petitioner testified that she found the note in her papers when she went through them. Ms. Degg was no longer Petitioner’s supervisor on June 20, 2011. Ms. Degg testified that she could not recall Petitioner ever complaining about anyone in the workplace sexually harassing her. Ms. Degg testified that she had received a written complaint about MHA Jenkins, but that she had never received any written complaint about MHA Robinson. Ms. Degg’s testimony that she did not receive the note was credible, and is accepted as true. Ms. VanZorge testified that Petitioner never complained to her about any type of sexual harassment by Mr. Robinson. Ms. Pope testified that Petitioner never complained to her about any sexual harassment. Ms. Candy Landry, the Human Resources Officer, testified that Petitioner never complained to her that she had been subjected to sexual harassment. She further testified that she was never aware of any allegations of sexual harassment of Petitioner from any source. The facts do not support the conclusion that Respondent discriminated against Petitioner on the basis of race or sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2012. COPIES FURNISHED: Sandra Johnson 284 Centerline Road Crawfordville, Florida 32327 Thomas A. Groendyke, Esquire Douberley and Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 tgroendyke@dc-atty.com Chris John Rush, Esquire Rush and Associates 1880 North Congress Avenue, Suite 205 Boynton Beach, Florida 33426 cjrushesq@comcast.net Lawrence F. Kranert, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 kranerl@fchr.state.fl.us Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com
The Issue Did Respondent, Homewood Suites Hilton (Homewood) located at 16450 Corporate Commerce Way, Fort Myers, Florida, discriminate in provision of public accommodation to Petitioner, Justo Lopez, on account of his race or ethnicity in violation of section 760.08, Florida Statutes (2019)?1 1 All references to the Florida Statutes are to the 2019 compilation unless noted otherwise.
Findings Of Fact Mr. Lopez is a disabled Navy veteran. Mr. Lopez had stayed at Homewood before the events at issue here. On August 3 and 4, 2019, Mr. Lopez was a guest of Homewood. He was there with his wife and four- year-old grandchild. That afternoon Mr. Lopez was doing laundry in the hotel laundry room. He was using both dryers for his clothes. His clothes were drying slowly. While Mr. Lopez was in the laundry room, Deborah Borchart, a Caucasian woman, washed her clothes. Mr. Lopez left the room planning to return later to check on his clothes. Mr. Lopez received a call from the desk clerk telling him another guest wanted to use the dryers. That guest was Ms. Borchart. Mr. Lopez explained that the clothes were drying slowly and needed another half hour. A little later the desk clerk called again about Ms. Borchart wanting to use the dryers. Mr. Lopez returned to check on his clothes. The clothes were not dry. He added coins to the dryer. He told Ms. Borchart that the clothes were not dry and that there would be a wait. Ms. Borchart began yelling and cursing at him, shouting that he was not the only person in the hotel. Mr. Lopez asked her to wait and said that he too was entitled to use the dryers. "Why are you using both dryers?" she asked. She said: "Everybody needs to use the dryers. Take your stuff out or I will call the police." Mr. Lopez removed lint from the dryers to speed up the drying process. He emptied the lint in the garbage can. Mr. Lopez passed within two or three feet of Ms. Borchart to throw the lint away. He did not push Ms. Borchart or step on her foot. After leaving the laundry room, Mr. Lopez told the desk clerk of Ms. Borchart's verbal abuse and threat to call the police. There is no evidence that the desk clerk reported this to the manager, Deborah Clark, who was not on site. After ten or 15 minutes, Mr. Lopez returned to the laundry room to check on his clothes. Ms. Borchart again cursed him, complained about him using the dryers, and threatened to call the police. Mr. Lopez removed his clothes although they were still damp. When he left, he told Ms. Borchart, "Sorry for any inconvenience." He put the clothes in his room. Then he left with his wife and grandchild to find a place to eat. During all of these encounters, Mr. Lopez and Ms. Borchart were the only people in the laundry room. Ms. Borchart told the desk clerk that Mr. Lopez yelled at her, stepped on her foot, and shoved her. Ms. Borchart asked the clerk to call the police. Mr. Lopez did not shove Ms. Borchart or stamp on her foot. Homewood attempted to support Ms. Borchart's reported account of events with hearsay that was not admissible pursuant to a proven hearsay exception and did not corroborate any admissible adverse evidence. The desk clerk called Ms. Clark to report Ms. Borchart's complaint and her demand for a call to law enforcement. Ms. Clark directed the clerk to contact law enforcement and transfer her to the laundry room telephone so she could speak to Ms. Borchart. Ms. Clark did not attempt to speak to Mr. Lopez. The desk clerk called law enforcement for Ms. Borchart. Two deputy sheriffs responded. While Mr. Lopez and his family were looking for a place to eat, a deputy called him and asked where he was. Mr. Lopez told the deputy that he was with his family looking for a place to eat. The deputy called again asking when he would return. The deputy said he and a colleague were at the hotel waiting for Mr. Lopez. Mr. Lopez and his family returned to the hotel to speak with the deputies. One deputy spoke to Mr. Lopez. The other spoke to his wife. The deputies also spoke to employees of Homewood. The deputies did not arrest Mr. Lopez or bring charges against him. Their report of the incident questions the credibility of Ms. Borchart and notes that her foot was not injured. It concludes that "probable cause for an arrest could not be developed for this incident." Ms. Clark claimed she did not know Mr. Lopez's ethnicity. However, Ms. Clark knew Mr. Lopez from previous stays at Homewood. She had met him twice before. These interactions gave her an opportunity to see and hear him. She knew that he was both African American and Hispanic. Mr. Lopez's race is apparent when you look at him. His surname and accent reveal his Hispanic heritage. Ms. Clark's testimony that she did not know Mr. Lopez's ethnicity is not credible, and a factor undermining her credibility in general.2 Ms. Clark directed Homewood employees to evict Mr. Lopez and enlisted assistance from law enforcement. She based this decision solely on 2 Disbelief of the explanation for the alleged discriminatory act accompanied by a suspicion of mendacity permits the trier of fact to infer the ultimate fact of intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Ms. Borchart's description of events, either statements made directly to Ms. Clark or statements to Homewood employees. The employees were not present in the laundry room and could only report what Ms. Borchart told them. After interviewing employees, Ms. Borchart, Mr. Lopez, and motel employees to whom Ms. Borchart had talked, a deputy advised Ms. Clark of the conclusion that a crime had not occurred and there was no probable cause for an arrest. It is reasonable to infer that the deputy relayed the observations and conclusions memorialized in an Incident Report, including that Ms. Borchart had no injury, that her statements were inconsistent, that her statements omitted information, and that neither she nor the desk clerk disclosed Mr. Lopez's earlier complaint to the desk clerk about Ms. Borchart's verbal abuse. Nonetheless, Ms. Clark directed the desk clerk to evict Mr. Lopez and his family and ask the deputies to escort them out. Mr. Lopez asked to speak to Ms. Clark. His request was not granted. There is no explanation why Ms. Clark did not speak to Mr. Lopez. Mr. Lopez and Ms. Borchart were similarly situated. Both were guests of Homewood. Both were using the motel's laundry facility. Both complained of the other being abusive. Homewood treated Mr. Lopez differently and worse than it treated Ms. Borchart. Ms. Clark relied solely upon Ms. Borchart's account of events, as recounted by Ms. Borchart or as relayed by Homewood employees. The record offers no explanation why Ms. Clark did not speak to Mr. Lopez. The evidence does not prove why Ms. Clark evicted Mr. Lopez, an African American Hispanic, paying, repeat guest and his family solely upon the statement of a Caucasian female without speaking to the African American Hispanic guest. The totality of the circumstances, the demeanor of the witnesses, and the lack of a persuasive explanation for the decision to evict Mr. Lopez's family without speaking to him reasonably support an inference that the decision was the result of bias against Mr. Lopez on account of his race, ethnicity or both. At Homewood's request, a deputy escorted Mr. Lopez, his wife, and his grandchild to their fifth floor room to gather their belongings. The family was given ten minutes to accomplish this. The officers then escorted the Lopez family to their car on a rainy night. Mr. Lopez begged the employees to permit them to stay the night. They said they were required to comply with Ms. Clark's instruction. During all these events, each time Mr. Lopez and his family passed near the lobby Ms. Borchart, laughing loudly, watched them. A few weeks later, in response to a complaint from Mr. Lopez, Homewood refunded Mr. Lopez's payment for the August 4, 2019, stay.
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 granting Mr. Lopez's Petition for Relief and prohibiting Respondent, Homewood Suites, Hilton, from discriminating against Mr. Lopez or any other Hispanic or African American guest in the terms and conditions of lodging there including, but not limited to, accommodations, and guest privileges. DONE AND ENTERED this 18th day of August, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Justo Lopez Post Office Box 6845 Ithica, New York 14851-6845 (eServed) Stacey M. Bosch, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 1 North Dale Mabry Highway Tampa, Florida 33609 (eServed) Richard B. Mangan, Jr., Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 1 North Dale Mabry Highway 11th Floor Tampa, Florida 33609 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue for determination in this case is whether Respondent violated Chapter 760, Florida Statutes, as alleged, by its refusal to allow Petitioner to rescind a resignation.
Findings Of Fact Ardie Collins, a Black female, lives in Rockledge, Florida, and is currently self-employed as a beauty salon owner. She began working for the State of Florida in 1973, as a salon inspector with the Cosmetology Board. She maintained her title of investigator and continued employment after reorganization with the Department of Occupational and Professional Regulation and the Department of Professional Regulation (DPR), as the agency is now known. During the relevant period Ms. Collins worked out of the DPR Regional Office in Orlando. In August 1982, Ms. Collins was terminated by DPR. The case went to arbitration, and by order of the arbitrator dated December 17, 1982, she was reinstated with full back pay. She reported back to work on February 10, 1983. In January 1983, before she reported back to work Ms. Collins went to see the AFSME union representative, Eric Tait, in Cocoa. The union had represented her in the 1982 proceeding and Tait had assisted the union. In that January meeting, two letters were drafted, later typed by a clerk and signed by Ms. Collins. These letters were characterized by both Ms. Collins and Eric Tait as "intent to resign" and a letter of resignation. The "intent to resign" is dated, in error, January 12, 1982, and is addressed to Howard Kirkland, Personnel Officer. It provides, This is to inform you that it is my intention to submit my resignation from State Employment, effective June 6, 1983. This resignation is now held by Eric D. Tait, AFSME President, Local 3040. (Petitioner's Exhibit #2) The second letter is dated June 6, 1983, is also addressed to Howard Kirkland, and provides: Kindly accept this as my resignation as Investigator with the Department of Professional Regulation effective June 6, 1983. The Department of Professional Regulation has informed me that as of June 6, 1983 I will have completed 10 years creditable service in the Florida Retirement System. (Petitioner's Exhibit #11) The first letter was mailed to DPR in Tallahassee and the second was held by Eric Tait. The January 12th letter was stamped received in the DPR Personnel office on January 24, 1983. Howard Kirkland took this letter to be a resignation. He discussed it with the Division Director and with the Assistant Secretary and was authorized to accept the resignation. He then sent a letter to Ardie Collins, dated January 25, 1983, stating: Please be advised that we have accepted your resignation from employment with this agency effective June 6, 1983. (Petitioner's Exhibit # 3) Later, on January 31, 1983, in response to a contact from Eric Tait, James Kirkland sent a letter to Ms. Collins explaining that, if necessary, her date of resignation would be extended to insure that she had the necessary ten years of creditable service. DPR commenced advertisement and recruitment to fill the anticipated vacancy. Sometime in early May 1983, Eric Tait mailed the second letter dated June 6, 1983. The letter was stamped received in the DPR Office of Personnel on May 5, 1983. On May 6, 1983, Ms. Collins wrote to Howard Kirkland informing him: Notice is hereby given that proposed or intended resignation is cancelled until further notice. (Petitioner's Exhibit #7) Between January and May, DPR received no word from Ms. Collins or her representative about her resignation. Kirkland again discussed the matter with his supervisor and responded by letter to Ms. Collins dated May 25, 1983, that her voluntary resignation had already been accepted in good faith. (Petitioner's Exhibit #8) There is no written policy or rule at DPR regarding the rescinding of resignations. The agency follows the general personnel management principle that until the resignation is accepted, withdrawal is negotiable; after acceptance, withdrawal is solely within management prerogative. Generally it is considered bad personnel management to permit an employee to rescind a resignation once it is accepted, and in particular, once the position is advertised. Ms. Collins claims that DPR has allowed other employees, white males and females, and black males, to rescind resignations. In his personal knowledge, and after reviewing DPR personnel files, James Kirkland found one individual who was allowed to rescind a resignation - a clerk, who had given probably only an oral notice and shortly later asked to withdraw it. In that case, nothing had been done to act on the resignation. The individuals named by Ms. Collins: Robert Fleming, Edward Bludworth, and Will Merrill, were not allowed to rescind resignations. Rather, they each reapplied after leaving DPR. Each was hired again on probationary status. Ms. Collins claims that she reapplied by mail to DPR sometime in late June 1983. However, neither the Tallahassee office nor the Orlando regional office have a record of her application. If she had reapplied for a vacant position, she would have been considered with the rest of the applicants. DPR has received resignations from employees in a variety of forms and in various ways. Sometimes resignations are submitted directly to an immediate supervisor; other times they are directed to the personnel officer. It is not uncommon to have a resignation expressed as an "intent to resign". DPR acted in good faith and consistent with established personnel practices when it accepted Ms. Collins' letter dated January 12th as a resignation and when it refused to allow her to rescind that resignation when requested some four months later. DPR determined that Ms. Collins had obtained her ten years of service as of June 6, 1983. This was the only condition regarding her date of resignation of which it was on notice. The agency received both the "intent to resign" and the "resignation" letter prior to receiving Ms. Collins' "cancellation". The agency simply ratified its acceptance in its response to Ms. Collins.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of October, 2005.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Geneva C. Rodgers, was hired as a secretary by respondent, Penney Retirement Community (PRC), on June 16, 1988. PRC operates a retirement community for Christian workers in Penney Farms, Florida (Clay County). As an employer with more than fifteen full-time employees, PRC is subject to the regulatory jurisdiction of the Florida Commission on Human Relations (Commission). Rodgers did not give her age at hearing. However, a Commission "investigatory report" and claim for unemployment compensation sponsored into evidence by respondent reflect she was fifty-nine years of age when she was terminated from employment on March 30, 1990. From her date of employment on June 16, 1988, until October 1, 1989, Rodgers was under the direct supervision of a Dr. Paul Hagens, who served as administrator for the facility. On that date, he was replaced by Dr. C. Noel White, a former minister who was then fifty years of age. Petitioner characterized her relationship with Dr. White as "awkward" and uneasy from the start and it is fair to say that the two never had a good working relationship. At hearing, Rodgers described the numerous tasks assigned to her as "overwhelming" and she agreed she was never able to adequately keep up with the workload. In addition, Dr. White and Dr. Hagens appeared to differ in their approaches to the job of administrator and Rodgers was unable to adapt to the workstyle and needs of her new supervisor. During the six months that she worked for Dr. White, petitioner had a series of problems with her work performance. These included such things as misfiling documents, making errors on Dr. White's appointment calendar, giving the wrong location for meetings, preparing documents incorrectly, repeatedly mishandling Dr. White's telephone calls, and omitting enclosures from various mailings. Towards the end of the six month period, Dr. White began to document many of these shortcomings. Copies of this documentation have been received in evidence. By March 1990, Dr. White concluded that it was necessary to terminate Rodgers because of the various deficiencies in her work performance. On March 30, 1990, which was a Friday, Dr. White called petitioner into his office and advised her she was being terminated effective that day but she would be given two weeks severance pay. Although petitioner was given an opportunity to review the documentation which White had accumulated concerning her shortcomings, she declined to review it. Petitioner was replaced by a forty-one year old female, Anita F. Clayton, who had over twenty years experience as a secretary-personnel assistant. When he hired Clayton, Dr. White did not know her age. To support her claim of discrimination, Rodgers pointed out that she was replaced by a younger woman. She also voiced the belief that Dr. White wanted a "younger" secretary because it "enhanced his ego". She opined that because Dr. White was "a very social administrator", he felt more "comfortable" with younger people in general. In addition, Rodgers felt the charge of inefficiency was unjustified because she had been given too much work, some of which she claimed should have been assigned to a non-secretarial position, and she was forced to work with an inefficient telephone system and copyier machine. Finally, she pointed out that one member of PRC's board of directors (a Dr. Wilson) had complimented her job performance. However, to the extent these assertions are credible, they do not support a finding that PRC had a discriminatory motive when it reached a decision to terminate Rodgers. Of the seventy-six full-time PRC employees, approximately twenty-four are between the ages of forty and sixty while six are over sixty years of age. Both the business manager and nursing home administrator are over sixty years of age and the head nurse is seventy-five years old. According to Dr. White, age was not a consideration in terminating Rodgers and he would have kept her as his secretary for as long as she wanted to work had he been satisfied with her performance. There is no evidence concerning Rodgers' salary while she was employed by PRC or the amount of lost wages, if any, that she suffered. The record does reflect that Rodgers collected an undisclosed amount of unemployment compensation pursuant to a claim filed on April 2, 1990.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is recommended that the petition for relief be DENIED. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1991. COPIES FURNISHED: Margaret A. Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Geneva C. Rodgers 511 Cove Street Green Cove Springs, Florida 32043 Allan P. Clark, Esquire 3306 Independent Square One Independent Drive Jacksonville, Florida 32202 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on April 22, 2005.
Findings Of Fact Petitioner is an African-American female who began her employment with Respondent on May 7, 2004. Respondent, the Department of Children and Family Services (Department), is an employer within the meaning of the Florida Civil Rights Act. At all times while she was employed by Respondent, Petitioner worked as a child protective investigator (CPI) and was on probationary status. That is, she had not yet achieved permanent status in the Career Service System and was an "at will" employee. After being hired as a CPI, Petitioner received classroom pre-service training and computer training which is provided to every new CPI. Following this initial training, new CPI's are assigned a limited case load, as was Petitioner. Allegations of Race Discrimination Wilfredo Gonzalez is a child protective investigator supervisor (CPIS) and has been a supervisor for approximately 10 years. At all times material to this proceeding he was Petitioner's immediate supervisor. Mr. Gonzalez is an Hispanic male. After Petitioner was assigned cases, she received additional on-the-job training and coaching by Mr. Gonzalez. Other child protective investigator supervisors and experienced CPI staff were also available to the Petitioner to answer questions. The work of new CPIs is carefully scrutinized by supervisors. They are expected to learn from mistakes and become increasingly proficient at the job. Mr. Gonzalez did not give Petitioner a semi-annual performance evaluation at the mid-point of her probationary period due to workload issues, although he was supposed to have done so. However, Mr. Gonzalez regularly met with Petitioner, in his office and in hers, to discuss the progress of her cases and to advise her of areas in which she needed improvement. He also provided e-mail comments and other instruction with regard to her performance on specific cases as well as on Department policy. He also provided her with reports from Respondent's computer case system, HomeSafeNet, which showed whether or not she was meeting certain performance standards. During these communications with Petitioner, Mr. Gonzalez informed Petitioner of problems with her performance. In addition to Mr. Gonzalez, there are two other CPISs in the Alachua County office of Respondent: Haydee Shanata and Patricia Alvarado, who are white females. In instances in which a person's immediate supervisor is unavailable, other CPISs review a CPI's work and deal with other office issues. Because of the nature of the work involved, CPIs and CPISs have to work weekends, nights, and holidays. If a CPI works at a time that his or her immediate supervisor is not on duty, the CPI reports to the CPIS on duty at that time. During the fall of 2004, Ms. Shanata prepared a holiday "on-call" schedule for December 2004. This was done with input from the other CPSIs. Leave was approved for certain employees, including Petitioner, during the holidays. However, due to some CPIs being out due to illness, the holiday on-call schedule had to be revised so that there would be sufficient staff to cover the holidays. The revisions in the holiday on-call schedule placed Petitioner on-call on days that she originally did not have to work. She was upset to see the revised on-call list. Upon learning that she would have to work on days when she originally was not scheduled, she called Ms. Shanata on her cell phone to ask her about these changes. Ms. Shanata explained that the changes were due to not having enough staff scheduled to cover the work. On December 10, 2004, Petitioner complained to Mr. Gonzalez about the revised holiday on-call schedule. During that meeting, Petitioner called CPIS Shanata a liar to Mr. Gonzalez. In addition, Petitioner wrote an e-mail entitled "Poor Holiday Planning." Petitioner sent the e-mail to the three CPISs, Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado. The e-mail also copied their supervisor, Barbara Ross, and the District Administrator, Ester Tibbs. The e-mail reads in pertinent part: I am writing to express my total dissatisfaction with the planning for the holidays by the supervisors here at the Alachua County office. It is apparent to myself as a new employee and should have been apparent to the experienced supervisors here at the Alachua County office that about half of the current staff here is new. I understand that there are some time difficulties and that in the normal day of conducting business that things can be hectic as you are unaware of what may happen however, there is no excuse for poor planning and then FORCING a new investigator to cover three on call shifts during both Christmas and New Years holiday weekends within a seven day work week when originally being scheduled for only one day. As I know that sometimes duty calls however, no organization should infringe on the personal lives of their employees. From this day on, I will be sure not to make plans with my son, as the supervisors here in Alachua County can easily cover their failure to plan properly by dictating to me what time I can spend with my family and when. Also, I was told in a conversation with Haydee Shanata when the schedules were originally created that I did not want to work any more back to back on-call days (clarified by two days within a three day period) and Haydee assured me that she would not schedule me any more back to back days and then I was randomly selected for two additional on-call days which included both Christmas and New Year weekends without my agreement. This e-mail did not complain of race or sex discrimination. The racial composition of those persons whose on-call schedules were changed is not in evidence. Mr. Gonzalez responded the same day with an e-mail that read as follows: Demetria at the writing of your email you had 21 open cases. I was actually locking a case. A case in which I was helping you by going ahead and editing the evidence entries and also entering the findings that you had failed to enter. I was doing this because I know you have been overwhelmed and also to help you get some cases closed that you are soon to roll-over so that you can attend the conference next week. I locked that case and now you have 20 open cases. I try to provide as much support as possible. Earlier this afternoon I pointed out that Myrtle Hodges will be assisting you with your cases so you can get over that hump created by the number of cases you received in Oct. In addition to that--while on-call supervisor for the month of November I specifically limited the number of cases the trainees would receive. In November you were one of the CPI's with the fewest cases at 9 total. This month CPIS Shanata worked hard to try and prevent those staff who will be here at the end of the month from receiving a lot of cases. You are one of those again who benefited. You have been off rotation since Wednesday and as of today you have received only one case for the month of December. On-call is a function of the CPI and CPIS position. This months on- call was an experience unlike any I've experienced since being a supervisor. I have been a supervisor for quite some time. We limited the leave requests we approved. In addition we tried to help persons plan by preparing and presenting the schedules in advance. Since then we've had a CPI out on extended leave as well as other action that limited the number of staff available to accept reports. Because of this we have had to revise the schedule. No doubt that in the work we do, someone has to work holidays and around the holidays. This IS a job that in a sense infringes on our personal lives. Every time I get a call in the middle of the night to assist a CPI investigating a case can be perceived that way but it is not. It's my job. As supervisors we do the best we can and hopefully in the process we learn along the way. Barbara has come to morning meetings and indicated that when there are concerns you should follow the chain of command. Though you addressed the email to me and the other supervisors you copied Barbara as well as Ester Tibbs. Give us the chance to resolve the issues before you send it up the chain of command. (emphasis in original) Incredibly, Petitioner responded with another e-mail to Mr. Gonzales with copies to Ms. Shanata, Ms. Alvarado, and Ms. Ross, accusing the supervisors of being inconsiderate, not courteous or professional, and that the supervisors "shoved it" in her face. On December 15, 2004, Petitioner wrote an apology for the choice of words she used in the series of e-mails regarding the holiday on-call schedule and for violating the chain-of command. Mr. Gonzalez wrote a letter of counseling dated December 27, 2004, to Petitioner regarding her unprofessional behavior toward Ms. Shanata and the insubordinate and disrespectful nature of her e-mails. Mr. Gonzalez admonished her for not following the chain of command and reminded her that she must treat her supervisors and co-workers with respect and courtesy. He also reminded her that she was not a permanent employee and that failure of her to use appropriate behavior would result in her immediate dismissal. The December 27, 2004, memo was the first time that Mr. Gonzalez had issued a counseling memo to Petitioner. Petitioner believes that her e-mail complaining about the holiday on-call schedule was the trigger for what she inaccurately believes was retaliation. Petitioner was scheduled to attend a conference in January 2005. The conference, referred to as the Dependency Summit, involved participants from throughout Florida and involved discussions and training that was separate from the general training given to CPIs when they begin employment with the Department. At some point, Petitioner's name was removed from the list of persons approved to attend the conference. Of the seven CPIs approved to attend the conference, four were African-American. During the early months of 2005, both Mr. Gonzalez and Ms. Shanata expressed concerns over Petitioner's work performance. Ms. Shanata sent several e-mails to Mr. Gonzalez documenting incidents in which Petitioner failed to respond to her e-mails requesting information or directing action on a case. Of particular concern was Petitioner's failure to contact law enforcement on cases in which law enforcement should have been called, such as cases involving sex abuse allegations. According to Ms. Shanata, if a criminal act has occurred, law enforcement must be notified immediately and they then take the lead in the case investigation. Mr. Gonzalez had instructed Petitioner on several occasions to involve law enforcement immediately in certain types of investigations. On March 7, 2005, Ms. Shanata received a telephone call from Detective Sherry French of the Alachua County Sheriff's Office regarding cases assigned to Petitioner that should have been referred to law enforcement, but had not. Ms. Shanata's supervisor, Ms. Ross, instructed Ms. Shanata to review Petitioner's cases which Detective French called her about. During her review, Ms. Shanata became concerned about Petitioner's handling of a case that involved a child who had been taken to the hospital on December 31, 2004. In that case, the child had tears to her vaginal area, which is an indication of possible sexual abuse. Ms. Shanata noted that Ms. Alvarado had "backed down" the case from being classified as an immediate case to a 24-hour case. In this type of case, it is important that the Child Protection Team become involved immediately to conduct their examination of the child, as vaginal tears heal quickly. Ms. Shanata discussed this case with Ms. Alvarado who recalled the circumstances of the case. According to Ms. Alvarado, Petitioner informed Ms. Alvarado that the Child Protection Team had seen the child, which led Ms. Alvarado to authorize that the case be "backed down." Ms. Alvarado considered receiving inaccurate information regarding a case of this nature to be an extremely serious problem. During her review, Ms. Shanata found other cases in which Petitioner had not followed Department policy and operating procedures. Ms. Shanata reported her findings to her supervisor, Ms. Ross, and to Mr. Gonzalez in an e-mail dated March 10, 2005. On March 24, 2005, Petitioner was directed to take a child to the Child Advocacy Center for a forensic interview. However, she failed to do so. In addition to these job performance issues, Mr. Gonzalez and Ms. Shanata expressed concern that Petitioner was habitually late to morning meetings at which cases are presented and discussed. On March 24, 2005, Mr. Gonzalez completed a Performance Evaluation of Petitioner. Performance ratings range from one to five points, with "5" being the highest rating in any category. A rating of "2" means that the employee's performance sometimes meets expectations and needs improvement. Petitioner received a "2" rating in three performance expectations. Her overall rating was a 2.70. A rating of "3" means that an employee's performance consistently achieves expectations. On March 29, 2006, Mr. Gonzalez wrote a memorandum to Marc Williams, District Operations Manager, detailing concerns about Petitioner's work and recommending that Petitioner be removed from her position. Mr. Williams is a white male. Petitioner was reassigned to a non-CPI position on March 26, 2005. She received the same pay and benefits during her period of reassignment. Consistent with Department policy, the reassignment was done abruptly and Petitioner was no longer allowed access to the Department's case management system. Petitioner requested a meeting with Mr. Gonzalez and Mr. Williams. Petitioner met with Mr. Gonzalez, Mr. Williams and Bonnie Robison on March 29, 2005, to discuss the Department's concerns and to give her a chance to present her side of the story. Petitioner was presented with a copy of her performance appraisal at this meeting. At the meeting, Petitioner requested a list of the issues regarding her job performance and an opportunity to respond to their concerns. The meeting lasted two to three hours. Petitioner was provided a bulleted list of concerns on April 1, 2005, which contained issues of concern that Mr. Williams felt she had not adequately refuted at the March 29, 2005, meeting. Petitioner provided a response on April 6, 2005. Probationary employees may be fired at will. The employing agency only needs to notify the employee that he or she has failed to complete the probationary period. Although probationary employees may be fired at will, Mr. Williams does not lightly recommend dismissal of a CPI investigator. However, Mr. Williams expects mistakes to diminish over time and, in Petitioner's case, the mistakes had not diminished and supervisors found that she was not receptive to coaching. Further, Mr. Williams felt that they had reason to doubt Petitioner's word. He recommended Petitioner's dismissal to Ester Tibbs. Ester Tibbs is the District 3 Administrator of the Department. She has the final authority in making the decision with regard to whether or not to terminate an employee. Ms. Tibbs is an African-American woman. According to Ms. Tibbs, she expects supervisors and managers to present compelling reasons as to why a probationary CPI should not be retained in a permanent status. This is because recruitment and training of CPIs are costly and terminating a probationary CPI interrupts investigations and adds to the workloads of other CPIs. In order to make the decision to terminate the employee, she must be convinced that the Department has provided appropriate training, necessary coaching, and support and that, despite their best efforts, she is convinced that the employee cannot carry out the demands of the job. Ms. Tibbs approved Petitioner's termination. On March 31, 2005, Petitioner filed a Career Service Employee Grievance seeking reinstatement of employment, and modification of her performance appraisal. The grievance alleges that she had been harassed by Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado; that she disagreed with her performance appraisal; and that she was discriminated against based on sexual orientation on July 1, 2005. The grievance does not allege race discrimination. As a probationary employee, Petitioner was not entitled to a grievance process regarding her dismissal. The record is not clear as to whether Petitioner should have been provided an opportunity to grieve the portion of her grievance relating to her performance appraisal, since she had already been informed she was being terminated at the time she filed the grievance. In any event, there is no evidence that not granting her request for a grievance process was based upon race. Other Employees in the Alachua County Office of Respondent Amanda Mash is a senior CPI with five years experience and permanent career service status. Ms. Mash is a white female. She was frequently late to morning meetings. However, if she was going to be late for a morning meeting, she called to let her supervisor know that she would be late. She has turned in cases late. She has not received disciplinary action. Ms. Mash never called a supervisor late at night and failed to inform of critical information; never failed to take a child to a child advocacy center appointment when asked to do so; never failed to respond to e-mails from supervisors asking information about cases; never neglected to submit her files to her supervisor when required to do so; and never called her supervisor a liar. Melissa Delcher is a CPI and is a white female. In February 2005, she interviewed a child in a case that was not assigned to her. The case was assigned to Petitioner. The child had disclosed to Ms. Delcher that he had been hit, but she did not see any visible signs of injury. According to Ms. Delcher, she did not contact the child protection team or law enforcement because the case was not assigned to her. Crystal Long-Lewis, an African-American female, was secretary for Mr. Gonzalez from July 2003 through April 2005. She was terminated from her position for conduct unbecoming a state employee and falsifying documents. She was a permanent career service employee at the time of her termination. It is Ms. Long-Lewis's perception that she was not treated fairly because of her race and her young age. She believed that there was favoritism of white CPIs over non-minority CPIs. Myrtle Hodges, an African-American female, became a probationary CPI when her other job with the Department was privatized. She received a below standards evaluation and was encouraged to resign rather than face termination. When asked was it possible that she was terminated based upon her race, she responded, "No, I don't think I was terminated on race." Torrey Kincade, an African-American male, was a CPI in the Alachua County office until he was transferred to another city where he currently works for Respondent. His supervisor while in Alachua County was Ms. Alvarado. He believes that when he worked for Ms. Alvarado, that she targeted him by giving him more tasks and "riding him" harder than a non-minority CPI. He believes he was held to a different standard regarding the dress code. He also believes that he did not receive as high a pay increase as his coworkers, who did not testify. There was no evidence presented as to employees' salaries or amount of pay increases for Mr. Kincade or any of his coworkers. Regarding his perception of the office while he worked under Ms. Alvarado's supervision, he stated, "I definitely--I can't say its discriminatory behavior, but I could say that each minority in the office was at one point targeted." Monica Felder is an African-American female who was employed by the Department for approximately a year and a-half. She was terminated from employment in January 2006 for personal misuse of the cell phone issued to her by the Department and failure to reimburse the Department for the personal calls. As a permanent career service employee, she appealed her dismissal to the Public Employees Relations Commission which affirmed her dismissal. In March 2005, Ms. Felder had received a satisfactory performance appraisal from Ms. Alvarado. Ms. Alvarado made positive comments on Ms. Felder's March 2005, performance evaluation. In January 2004, an employee of Respondent sent an e- mail to Ms. Tibbs regarding concerns about Ms. Alvarado, including an allegation of racism. Ms. Tibbs determined that an internal investigation was needed, and one was conducted. The investigative report concluded that while certain employees held this perception, there was no evidence that Ms. Alvarado targeted anyone based on race. The remaining allegations concerned Ms. Alvarado's management style. Allegation of Sex Discrimination In July 2004, Mr. Gonzalez was approached by another CPI in his unit. Mr. Gonzalez was informed by the CPI that Petitioner had been seen hugging another female CPI in her office in a "romantic way." He instructed that person not to repeat that information and then conferred with his supervisor at that time, Lori Walker. As a result of hearing this allegation, Mr. Gonzalez called Petitioner into his office and told her that there was a rumor in the office that she was having a relationship with another female employee, that her conduct needed to be professional, and that she should keep her door open when that CPI was in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
Findings Of Fact Respondent is an employer as that term is defined in Section 760.10, Florida Statutes. Respondent employed Respondent in January 1990. Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida. Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks, Florida. He has written an article entitled "Forts in St. Marks during the War Between the States." Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations. Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work. Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request. In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties. At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles. Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours. In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002. On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office. In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness. On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition. After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time. In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations. In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation. Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay. One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer. During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar. Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay. Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible." Petitioner was aware of Respondent's Internet policy. Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy. Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order. The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties stipulated that they would not re-litigate issues previously litigated at the PERC hearing. The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order. The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason. At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of March, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2005. COPIES FURNISHED: Allen Gerrell, Jr. 10750 Kilcrease way Tallahassee, Florida 32305 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000
