The Issue Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about July 1, 1995, on the basis of her race (white), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995. Petitioner is a white female and a licensed CNA. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure. Vermette hired Petitioner as a CNA on April 18, 1995. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station. Petitioner told Donahue that Samuels had thrown her around the room. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is enough of this.” Donahue told Petitioner to leave the room and wait in the employee break room. Donahue reported this incident to her superior, Vermette. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome. During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Jayne E. Griffith, pro se 2018 Gairloch Street Orlando, Florida 32817 Deborah Gibson, Esquire Jackson Lewis 390 North Orange Avenue Suite 1285 Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issues in this case are whether Respondent, as City Manager for the City of Opa-locka, violated Section 112.313(6), Florida Statutes, by (1) using his position to engage in sexual, or romantically-oriented, comments, behavior, and/or invitations to female City employees; (2) having a subordinate's car repaired using City resources; (3) soliciting a personal sexual or romantic relationship with a female job applicant; and (4) if yes, what penalty is appropriate.
Findings Of Fact Respondent served in the Marines for two years and in the Florida Department of Law Enforcement (FDLE) for thirteen years. He then served as Police Chief of Florida City for two years before resigning to become the Executive Officer in Charge of Investigations at the City of Lauderhill Police Department. After two or three months he quit that job, and conducted private investigations until he was hired by the City of Opa- locka. Respondent was appointed acting City Manager for the City of Opa-locka (City/Opa-locka) on Friday, June 9, 1995. He was appointed City Manager effective July 28, 1995, and remained in that position until May 1997. All City employees, other than those in the City Attorney's Office, ultimately reported to the Respondent as City Manager. Also, as City Manager, Respondent could terminate City employees. In Respondent's positions as acting City Manager and City Manager, he was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Employees and Officers. Remarks and Conduct Toward Female Employees At all times relevant hereto, Angelita Griffin was employed by the City of Opa-locka. Ms. Griffin first started working with the City of Opa-locka during a Federal Emergency Management Agency (FEMA) project in late 1992. Thereafter, in March 1993, Ms. Griffin was hired by the City, in a temporary position as an accounts clerk in the Water Department, which was under the City's Finance Section. Ms. Griffin was eventually placed in a permanent position with the City and continued to work as a clerk in the Water Department until June 1995. Ms. Griffin first met Respondent on Saturday, June 10, 1995, the day after he was appointed acting City Manager. Respondent was visiting the Finance Department with Winston Mottley, Director of the Finance Department. Ms. Griffin and several other employees were in the office working that day. Respondent briefly spoke to some of the employees, but he did not engage in extended conversations with any of them. On June 10, 1995, while at the Finance Department, Respondent asked Mr. Mottley if he could send someone to Respondent's office on Monday to answer the telephones. Mr. Mottley said that he had just the right person, someone who he had been "trying to get out of his office." Even though Mr. Mottley did not name or otherwise identify that person to Respondent, the employee to whom he was referring was Ms. Griffin. The following Monday, June 12, 1995, Mr. Mottley informed Ms. Griffin that she was being transferred to the Building Department and told her to report there the next day. After Ms. Griffin reported to the Building Department on June 13, 1995, she was directed to report to the City Manager's Office. Although Ms. Griffin reported to the City Manager's Office, she was unhappy about being transferred from the Water Department. Ms. Griffin wanted to remain in the Water Department because she enjoyed the work, believed that she knew the job, and was comfortable there. Almost immediately after being transferred from the Water Department, Ms. Griffin openly expressed her disatisfaction about the transfer and took steps which she believed would possibly result in her being reassigned to the Water Department. Within a day or so of Ms. Griffin's being transferred to the City Manager's Office, she told Respondent that she wanted to go back to the Water Department. However, he did not comply with her request. Also, as early as June 13 or 14, 1995, Ms. Griffin telephoned former City Manager Dennis Whitt and asked him if he could "talk to someone in City Hall and see if [she could] go back to the Water Department." Ms. Griffin called former City Manager Whitt because she believed that he was "still close to the mayor and the commissioners." When former City Manager Whitt did not call Ms. Griffin with a response regarding her request, Ms. Griffin telephoned Mr. Whitt. In that conversation, Mr. Whitt told Ms. Griffin that he had been unsuccessful in trying to help her get transferred back to the Water Department. Mr. Whitt conveyed to Ms. Griffin that he had spoken to someone in the Water Department who said that Ms. Griffin was incompetent and that there was "nothing they could do to help [her]." Based on her telephone conversation with Mr. Whitt, Ms. Griffin believed that Respondent had told City Commissioner Helen Miller that Ms. Griffin couldn't return to the Water Department because she was "incompetent, . . ., didn't know [her] work over there, [and]. . . couldn't even type." During the week of June 12, 1995, Ms. Griffin also went to the office of the City's Vice-Mayor Timothy Holmes and asked him to help her "get back to the Water Department." Vice- Mayor Holmes apparently believed that such a transfer was unlikely and advised Ms. Griffin that Respondent had said Ms. Griffin "didn't know [her] work over there." Despite Ms. Griffin's soliciting the assistance of Mr. Whitt and Vice-Mayor Holmes, whom she considered to be influential, and Respondent, she was never reassigned to the Water Department. Between June 1995 and November 1995, Ms. Griffin worked in four different offices: the City Manager's Office, the Mayor's Office, Safe Neighborhoods, and Code Enforcement. While working in each of the aforementioned offices, Ms. Griffin's sole or primary responsibility was to answer the telephone. Beginning on June 13, 1995, Ms. Griffin worked for Respondent in the City Manager's Office and was there for about two months. While working in the City Manager's Office, there were two instances when Respondent spoke to Ms. Griffin about reporting to work late. In the first instance, Ms. Griffin indicated that her tardiness was due to transporting her son to daycare. During this or a subsequent conversation, Respondent asked Ms. Griffin several personal questions. The questions concerned Ms. Griffin's marital status, the paternity of her child, and her financial status as it related to her ability to take care of herself and her child. It was then that Ms. Griffin told Respondent that she earned extra money by working part-time as a singer. Ms. Griffin agreed to and did eventually bring him a tape of her music. On another occasion, when Ms. Griffin was working in Respondent's office, he commented on her weight and the junk food she was eating. Respondent then suggested that Ms. Griffin contact a company to inquire about having a juice machine put in the building. Respondent's comments upset Ms. Griffin so much that she almost stayed home from work the next day. However, she later decided to report to work even though she was late. When Ms. Griffin arrived at the office, Respondent called Ms. Griffin into his office to discuss her tardiness. Respondent also called his assistant, Ms. Robinson, into the office while he talked to Ms. Griffin. Mr. Mottley, who was already in Respondent's office when Ms. Griffin arrived, remained there during the meeting. Ms. Griffin became frustrated and told Respondent and Mr. Mottley that she was tired of them "harassing" her. After Ms. Griffin made this comment, Respondent demanded that she write a letter of apology for her accusation against Respondent and Mr. Mottley. Ms. Griffin acknowledged that she, in fact, wrote the letter and gave it to Respondent. However, there is no indication of what Respondent did with the letter. After working full-time in the City Manager's Office for about two months, Ms. Griffin was transferred to the Mayor's Office for a short time. From the Mayor's Office, Ms. Griffin was sent to Safe Neighborhoods, where she worked for approximately three weeks. Ms. Griffin's assignment to Safe Neighborhoods was the result of a request by the director of that program for additional assistance. From Safe Neighborhoods, Ms. Griffin went to work in Code Enforcement, where she worked until November 6 or 7, 1995. In the City of Opa-locka, a Report of Personnel Action was to be completed whenever an employee was transferred from one section to another section. However, it was not unusual for City employees to be transferred without such forms being completed. In Ms. Griffin's case, there was never any paperwork reflecting any of her interdepartmental transfers or reassignments. During Ms. Griffin's tenure with the City, even when she was not assigned exclusively to the City Manager's Office, she was called to that office several days a week, for some part of the workday, to answer the telephone. Ms. Griffin had no set schedule for reporting to the City Manager's Office to answer the telephone, but was considered a relief person and, as such, went there whenever she was called upon to report. When Ms. Griffin was needed, she was always called by a support staff person from the City Manager's Office. Ms. Griffin also served as a relief person under the two former city managers who preceded Respondent. In addition to Ms. Griffin, employees from other City departments were required to serve as relief persons by answering the telephone in the City Manager's Office. Again, this practice was in place prior to Respondent's being appointed City Manager and continued during his tenure. Several City employees, mainly Department heads or other highly placed staff, had Rotary Club memberships paid for by the City. Although Ms. Griffin did not fall into this category of employees, Respondent also authorized a City paid membership for her. Ms. Griffin was one of the City employees who regularly attended Rotary functions and meetings. In addition to her job with the City, Ms. Griffin was a singer. Because Ms. Griffin was a performing artist, she often sang at Rotary Club activities. Notwithstanding the fact that Ms. Griffin customarily sang at Rotary Club or other functions, there was at least one occasion when Respondent asked Ms. Griffin to sing at an event and she refused to do so. After Ms. Griffin refused to sing at that particular event, Respondent asked her why she was not more cooperative given "all that he had done for her." In response to this inquiry, Ms. Griffin told Respondent that her refusal to sing was not anything "personal." However, Ms. Griffin maintained her position that she "couldn't do it." After this exchange, there is no indication that Ms. Griffin sang at this function or that she suffered any adverse consequences as a result of her decision. During the period between June 13, 1995, and November 6, 1995, none of Ms. Griffin's supervisors ever documented any complaint about her job performance or observed any changes in her behavior or attitude. In fact, those individuals who worked with Ms. Griffin and saw her on a regular basis found her to be pleasant and happy, and noticed no changes in her demeanor. However, while Ms. Griffin worked in Safe Neighborhoods, a fellow employee, Mildred Bradshaw, observed that Ms. Griffin sometimes appeared disgusted or disturbed when she returned from the City Manager's office. In response to Ms. Bradshaw's inquiry about what was wrong, Ms. Griffin expressed her dissatisfaction with Respondent and told Ms. Bradshaw that she was "tired of [Respondent] calling her back over to his office" and "switching me back and forth and the way he was treating me as far as coming on to me." Ms. Griffin testified that she gave Ms. Bradshaw no detailed explanation of what she meant by these comments. None the less, contrary to Ms. Griffin's statement, Ms. Bradshaw testified that Ms. Griffin told her that she and Respondent had had "sex" in Respondent's office. According to Ms. Bradshaw, Ms. Griffin made this statement to her in October 1995, when Ms. Griffin worked in Safe Neighborhoods. On October 1, 1995, while Ms. Griffin was working in Safe Neighborhoods, City Commission authorized a 5 percent cost of living salary increase for City Employees. As a result thereof, Ms. Griffin's annual salary went from $16,500 to $17,388. Respondent authorized an additional raise for Ms. Griffin, on October 9, 1995, which increased her salary to $18,000. For the three weeks Ms. Griffin was in Safe Neighborhoods, she was supervised by Ms. Lockhart. However, Ms. Lockhart was unaware of Ms. Griffin's salary or of the pay raise authorized by Respondent. During Respondent's tenure as City Manager for the City Of Opa-locka, City employees other than Ms. Griffin received salary increases in excess of the 5 percent cost-of- living increase approved by the City Commission. Some of those salary increases, approved by Respondent, were substantially higher than the one received by Ms. Griffin. Completion of a Report of Personnel Action (RPA) is required to effectuate a salary increase for City employees and the form contains a "remarks" section that may be used to indicate the reason for any pay adjustment. Nonetheless, it is not unusual for such a statement to be absent from the RPA. In Ms. Griffin's case, no reason for the October 9, 1995, salary increase was provided on the form. Ms. Griffin signed the RPA authorizing her salary increase. However, when she signed the form, the only pay raise shown was the 5 percent cost of living adjustment. Ms. Griffin testified that the first she knew of the raise was when the Respondent called her in and asked her how she liked her raise. According to Ms. Griffin, she was upset to know she was receiving special treatment, and was concerned about what Respondent might want in return. On October 25, 1995, Ms. Griffin submitted a letter of resignation to the City, with such resignation being effective November 6, 1995. At the time Ms. Griffin tendered her letter of resignation, she told City colleagues that she was leaving the City to accept a job as a singer. Ms. Griffin told some City employees that she would be going on tour with someone, although after leaving the City, Ms. Griffin performed as a singer on a cruise ship. On the evening of November 1, 1995, Respondent and a number of City officials who belonged to the Rotary Club, including Respondent's assistant, Michael Jones, and Police Chief Craig Collins, attended a Rotary Club function. Ms. Griffin also attended and sang at the event. While enroute to the Rotary Club function on November 1, 1995, Ms. Griffin damaged her car. Ms. Griffin testified that the car was damaged when she backed into the gate or lock at her apartment complex as she was leaving for the Rotary Club event. However, that evening Ms. Griffin told Respondent, Michael Jones, and Craig Collins, in separate conversations, that someone had hit her car. On November 1, 1995, after learning that Ms. Griffin's vehicle was disabled, Police Chief Craig Collins offered to drive her home. Even though Ms. Griffin knew Chief Collins not only as the City's Police Chief, but also as a relative of one of her friends, she declined his offer. Michael Jones also offered to provide Ms. Griffin with a police escort to take her home. Again, Ms. Griffin declined this offer and instead accepted a ride with Respondent. At Respondent's suggestion, Ms. Griffin then drove her car to the City Police Station and parked it. Respondent went to the Police Station to pick up Ms. Griffin and drive her home. Respondent drove Ms. Griffin home after the Rotary Club event. When Respondent arrived at Ms. Griffin's apartment complex, he entered through the security entrance and drove Ms. Griffin to her apartment. About fifteen minutes after Respondent left the Rotary function, Respondent called Mr. Jones from the cellular telephone in Respondent's car to advise him of matters that the Mayor had discussed earlier that evening. This call was made after Respondent took Ms. Griffin to her apartment. Ms. Griffin's and Respondent's versions of what occurred once they arrived at Ms. Griffin's apartment complex are at odds. Respondent's version of the events that transpired on the evening of November 1, 1995, is that after he arrived at Ms. Griffin's apartment complex, she exited his car and he immediately left. According to Respondent, he never went into Ms. Griffin's apartment. According to Ms. Griffin, Respondent carried Ms. Griffin's belongings upstairs, entered her apartment, put the items in her bedroom, seated himself on her couch, and asked for something to drink. Ms. Griffin testified that while she was getting Respondent something to drink, he came up behind her, and rubbed against her. Ms. Griffin stated that she then turned around and tried to push him away, but Respondent persisted in his efforts, asking her why she was resisting after all he had done for her. Finally, according to Ms. Griffin, Respondent pushed her down and asked her for oral sex, and when she did not comply, he engaged in sexual intercourse with her against her will. Ms. Griffin testified that she did not want Respondent in her apartment on the evening of November 1, 1995, but claims that she did know how to stand up to him. Ms. Griffin never reported the aforementioned alleged sexual assault to anyone before about August 1996, when she mentioned it to her attorney. Moreover, Ms. Griffin never reported the incident to law enforcement officials nor did she seek medical attention after the alleged assault. There is no physical or otherwise reliable evidence that the alleged sexual assault occurred. Furthermore, it is found that Ms. Griffin's testimony regarding the alleged assault is not credible. Thus, it is found that on the evening of November 1, 1995, Respondent never entered Ms. Griffin's apartment. The next day, November 2, 1995, Ms. Griffin reported to her City job as usual. During that day, Ms. Griffin went to the City Manager's office after she was called to report there. Ms. Griffin continued to work for the City until November 7, 1995. Although Ms. Griffin's resignation was to be effective November 6, 1995, she worked an extra day until November 7, 1995, at the request of Respondent. During the period between November 7, 1995, and August 19, 1996, Ms. Griffin was employed as a singer on the a cruise ship, Europa Sea Cruise. About nine months after Ms. Griffin left her job with the City, she filed a sexual harassment claim against Respondent. According to Ms. Griffin, the reason she decided to file the complaint was that she "had gone for a long time without saying anything to anybody." Also, Ms. Griffin acknowledged that she filed the complaint because she was struggling financially, was in a low-paying job, was away from her son, had given up her apartment, and was "stressed out and worried." The basis of the claim was alleged acts that occurred between June 1995 and November 1995. With the possible exception of comments that may have been made to Ms. Bradshaw in October 1995, Ms. Griffin never told anyone that Respondent made inappropriate remarks to her or behaved inappropriately toward her. Ms. Griffin testified that from the first month that she reported to Respondent's office and continuing until she left the City's employ four and one-half months later, she was subjected to continuous sexual harassment by the Respondent. According to Ms. Griffin, in addition to the questions about her personal life noted in paragraph 15 above, Respondent asked her whether there was a man in he life, told her he was looking for a girlfriend, and asked for her help. Ms. Griffin also testified that during the time she worked in Respondent's office, he stared at her breasts. Moreover, Ms. Griffin testified that Respondent hugged her almost everyday that she came into the office. According to Ms. Griffin, Respondent sometimes hugged her in the presence of other City employees who worked in the office. According to Ms. Griffin, Respondent not only hugged her, but also hugged other female City employees. From the reception area, anyone could see into Respondent's private office through a transparent window. This was possible because there was no covering on the window to obscure the view. Regla Mederes, who worked as Respondent's executive secretary at the time relevant to this proceeding, worked in an area where she was able to observe both Ms. Griffin and Respondent and would have seen Respondent hug Ms. Griffin if he had done so. However, Ms. Mederes never saw Respondent hug Ms. Griffin when she came into the office to answer the telephones or any other time. Aletha Robinson, Respondent's assistant when he worked for the City, was in and out of Respondent's office on a regular basis, but also never saw Respondent hug Ms. Griffin. Ms. Robinson stated that Respondent was always professional and "very much" a gentleman when he was in the office. Respondent never hugged Ms. Griffin or any other City employee in the workplace and was never overheard making sexually inappropriate remarks to female employees in the workplace. Ms. Griffin testified that at on two separate occasions, Respondent touched her on the buttocks. According to Ms. Griffin, Respondent touched her buttocks with his knee when he sat behind her at a banquet. Based on Ms. Griffin's account of events, Respondent also touched her buttocks with his hands while they stood in a buffet line at a Rotary function. Ms. Griffin stated that in the first situation, she made no attempt to move her chair and in neither of the aforementioned situations did she say anything to Respondent. Other City employees and officials attending these events never observed Respondent touching Ms. Griffin. In fact, at Rotary events, Respondent never sat near Ms. Griffin. As City Manager, Respondent was seated at the front of the room, typically at the head table. On the other hand, Ms. Griffin was usually late and sat in or near the back of the room. Moreover, Ms. Griffin testified that during the course of her employment, Respondent asked her out to dinner and on another occasion, called her at home and asked if her boyfriend was in bed with her. Ms. Griffin never reported this to anyone during her employment with the City. According to Ms. Griffin, on the evening of November 1, 1995, after the Rotary Club function had concluded, Respondent remarked that since Ms. Griffin had resigned from the City, she could now go out with him. Moreover, Ms. Griffin testified that these comments were made in the presence of City officials and/or employees, namely Vice Mayor Holmes, Aletha Robinson, and Michael Jones. Neither of the aforementioned individuals heard Respondent make any comment that Ms. Griffin could now be his girlfriend or go out with him. Respondent, on one occasion, commented to Mr. Mottley about Ms. Griffin's breasts and their size. During this conversation, which Mr. Mottley characterized as "talking as men," he jokingly warned the Respondent that "breasts" could get him into trouble. This was a private conversation between only Respondent and Mr. Mottley. It is unknown where or when this discussion took place. Respondent has had numerous courses dealing with sexual harassment. Thus, he was aware that remarks of a sexual nature to subordinates are inappropriate; that it was improper to ask a subordinate employee about her sexual partners; that it was improper to ask a subordinate employee to kiss him; and that it was improper for a superior to attempt to engage a subordinate employee in a sexual or romantic relationship. Ana Otero was employed by the City of Opa-locka for eight years, leaving in September 1997, after she was asked to resign by Arlington Sands. Ms. Otero testified that she did not like anyone associated with the City of Opa-locka, including Respondent. On one occasion when Ms. Otero went to Respondent's office, he told her that he wanted to come to her house for rice and beans. On another occasion, while passing through the small room where the copier was located, Respondent came up behind Ms. Otero while she was making photocopies. He was so close to her that she could feel his breath on her neck. Also, there was a time that Respondent made a comment to Ms. Otero regarding short Puerto Rican women. In another incident that occurred at the workplace, Respondent asked Ms. Otero to give him an "intimate" kiss. Ms. Otero never reported Respondent's conduct or comments during her tenure with the City. Liliana Cuevas was employed by the City of Opa-locka from 1990 until 1996. At one point, when Ms. Cuevas was in a meeting with Respondent on a personnel matter, he began to inquire about her personal life. Respondent asked such questions as why she was divorcing her husband, and whether her husband was her son's father. Respondent also asked her if she wanted to go out with one of his colleagues. On another occasion, Ms. Cuevas was delivering papers to the Respondent. As she gave him the items, he brushed his fingers lightly against her hand. As she was about to exit his office, he called her back to give her something else to take back with her. This scene was repeated several times, each time with Respondent brushing Ms. Cuevas' hand and watching her as she went back and forth. Respondent never asked Ms. Cuevas to have sex with him, asked her out, or made any "moves on her." Notwithstanding, Ms. Cuevas' description of the the incident described above, she stated that Respondent has never flirted with her or gotten physical with her. Ms. Cuevas never reported any inappropriate conduct by Respondent while she was employed by the City. While Ms. Cuevas filed sexual harassment charges against other employees of the City, she has not filed any such charges against Respondent. Sonia Hernandez started working for the City as an administrative assistant in the Public Works Department in November 1995. She left the City's employ in December 1996, after being terminated by Aibola Balogun. One week into her employment with the City, someone at a staff meeting asked Ms. Hernandez if she were single. Respondent told the staff member to "back off." When Ms. Hernandez came to this meeting, she unknowingly sat in the area designated for upper management, Respondent grabbed her arm and hand as if indicating she was in the wrong area. Ms. Hernandez characterized Respondent's action as physical rather than sexual. Nonetheless, when he put his hand on Ms. Hernandez, she felt uncomfortable. About a week after the staff meeting Respondent called Ms. Hernandez and invited her to the Christmas party. During this call, another person was on Respondent's speaker phone. Respondent made comments to this third person about Ms. Hernandez's "big brown eyes." On another occasion, during one of his regular visits to the City's public works section, Respondent observed Twinkies on Ms. Hernandez's desk and suggested that she "lay off the Twinkies." Ms. Hernandez believed that the comment was a negative reference to her weight, and responded by telling Respondent that she was "comfortable with herself." Respondent then looked at her, chuckled, and said, "Well, when I usually go to the meat market, I buy a pound of meat as opposed to a pound of bones." Ms. Hernandez did not understand the meaning of Respondent's statement, but the earlier reference to her weight made her feel uncomfortable. Although Respondent made comments about Ms. Hernandez's weight, she testified that Respondent made no sexual advances toward her either at the Christmas party or the workplace. Finally, at the City employees' Christmas party, Respondent approached Ms. Hernandez and her date, and told Ms. Hernandez that someone wanted to meet her. Ms. Hernandez indicated that she was not interested. During the conversation, Ms. Hernandez believed that Respondent was looking at her breasts, rather than at her face. This made Ms. Hernandez feel uncomfortable. At the end of the conversation Respondent shook Ms. Hernandez's hand. The entire conversation lasted about 30 seconds. While serving as City Manager, Respondent was aware that it was improper for a superior to engage in unsolicited or unwelcome sexually or romantically-oriented remarks or behavior toward a subordinate employee. Repair of Employee's Vehicle Using Public Resources As previously noted, on November 1, 1995, Ms. Griffin damaged her car on the way to a Rotary Club function at which she was to sing. After the event, Ms. Griffin approached Michael Jones and told him that someone had hit her car, that the bumper was on the ground, and that the car was inoperable. Nevertheless, later that evening, Ms. Griffin was able to drive the damaged vehicle to the City Police Station, where she left it overnight. The next day, Ms. Griffin went to see Michael Jones about having her car repaired. Mr. Jones instructed City employee, Jesus Corrales, to look at the car to assess the damage. Mr. Corrales told Mr. Jones that he could reattach the bumper in about five minutes. Thereafter, Mr. Jones directed Mr. Corrales to repair Ms. Griffin's car. Pursuant to Mr. Jones' directive, Mr. Corrales repaired Ms. Griffin's car. Even though no City-owned parts were required, it took Mr. Corrales two to three hours to repair the vehicle. After the vehicle was prepared, Ms. Griffin offered to pay Mr. Corrales $20.00 for repairing the damage to her car. Mr. Corrales refused to accept the money. Respondent never authorized or directed Mr. Corrales to repair Ms. Griffin's car. Nor did Respondent authorize or instruct Mr. Jones to have Mr. Corrales repair the vehicle. Behavior Toward Job Applicant One day during Respondent's tenure as City Manager, he went to the City's Revenue Department. While in that office, Respondent observed an individual who was not employed by the City in that office typing. The Respondent then asked Deborah Ford, Director of the Revenue Department, who the person was and why she was in the office working. Ms. Ford indicated that the individual, Tonia Sanders, was good and had previously worked with her. Respondent admonished Ms. Ford, reminded her that there were procedures for hiring people, and directed her to have Ms. Sanders leave the office. Respondent then told Ms. Ford to have Ms. Sanders pick up an employment application and he offered to interview her if Ms. Ford brought her by his office. A couple of days later Ms. Ford brought Ms. Sanders by Respondent's office. After both women entered the office, Ms. Ford commented to Respondent about Ms. Sanders' physical appearance, indicating that Ms. Sanders was attractive and had nice legs. Respondent cut this conversation off and then talked to Ms. Sanders about matters related to her application. Immediately after Ms. Sanders left, Respondent counseled Ms. Ford and told her not to ever bring anyone else to the office and "talk like that." Respondent put Ms. Sanders' City employment application on file and subsequently interviewed Ms. Sanders on one other occasion. However, Respondent never hired her for a position with the City. Ms. Sanders testified that Respondent later called Ms. Sanders and asked her out socially. On one occasion, he suggested she prepare dinner for him and offered to purchase the ingredients. On another occasion, Ms. Sanders spent some time talking with Respondent at a restaurant called Shula's, as part of a gathering organized by City employee Debra Ford. Following the gathering, Ms. Ford invited Respondent to go out with her and Ms. Sanders, but Respondent declined and all three decided to go home. However, as Respondent was leaving, he asked Ms. Sanders to ride with him. Ms. Sanders refused Respondent's offer. On another occasion, Respondent called Ms. Sanders and told her to make hotel reservations at a specified hotel. Respondent instructed Ms. Sanders to call him after she had made the arrangements and he would meet her at the hotel. Although Respondent never expressly spoke to her about sexually-related matters or made sexually-explicit suggestions, Ms. Sanders reasonably assumed that Respondent was attempting to set up a sexual liaison with her. Ms. Sanders was not interested and did not comply with Respondent's instructions. The aforementioned incidents involving Ms. Sanders occurred while Ms. Sanders' job application with the City was pending.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that the Respondent, Earnie Neal, violated Section 112.313(6), Florida Statutes, in two of the three instances alleged; imposing a civil penalty of $3,000 per violation; and issuing a public censure and reprimand. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. _ CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 13th day of November, 1998. COPIES FURNISHED: Virlindia Doss, Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 David H. Nevel, Esquire Law Offices of Ronald S. Lowy Seventh Floor 420 Lincoln Road Miami Beach, Florida 33139 Cynthia Everett, Esquire City of Opa-locka City Hall 777 Sharazad Boulevard Opa-Locka, Florida 33054 Kerrie J. Stillman Complaint Coordinator and Clerk Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue Whether Respondent, Momma G’s, Inc. (“Momma G’s”), violated the Florida Civil Rights Act of 1992, sections 760.01 through and 509.092, Florida Statutes(2015),1/ by discriminating against Petitioner (“Scarlett Evans” or “Ms. Evans”) or by retaliating against her for participating in a protected activity.
Findings Of Fact Momma G’s is a sandwich-shop franchise consisting of franchisees and company-owned stores. Ms. Evans is a female who began working at a Momma G’s franchise located in Panama City, Florida (“the restaurant”), in October of 2013. Ms. Evans started as a cashier, and her good performance led to her being promoted to shift leader in May of 2014. A few months later, the franchise owners asked Ms. Evans to become the restaurant’s general manager because the current general manager was doing a poor job. While employed as the restaurant’s general manager, Ms. Evans typically worked Monday through Friday for 35 to 40 hours a week. Ms. Evans occasionally worked weekends in order to account for inventory, and she asserts that she had no problem with working weekends. In approximately December of 2014, the restaurant’s three owners notified Momma G’s corporate headquarters that the restaurant was struggling. The restaurant was six months behind on its rent, and the landlord was threatening eviction. In addition, the owners had accumulated over $300,000 in bank debt. Because closings damage a restaurant chain’s image, Momma G’s corporate headquarters negotiated a deal in which the franchisor acquired the restaurant and would operate it as a company-owned store. Accordingly, Momma G’s assumed control of the restaurant on May 1, 2015. Momma G’s did not fire any of the restaurant’s employees, but it did require all of them to re- apply for positions at the restaurant. Mike Davis is the vice president of Operations for Momma G’s. At the times relevant to the instant case, he oversaw 30 restaurants. Once Momma G’s corporate headquarters completed the negotiations to acquire the restaurant, Mr. Davis immediately drove to Panama City in order to oversee the transition. Mr. Davis contacted another Momma G’s employee (Sam Ferminella) and asked him to assist with the transition. Mr. Ferminella was a general manager who had proven to be proficient in turning around troubled stores. After the May 1, 2015, acquisition, Mr. Davis remained in Panama City for approximately three days to oversee the transition. Mr. Ferminella was more involved with improving the restaurant’s day-to-day operations, and he spent approximately to 11 days in Panama City during the first three weeks after the acquisition. At some point during the 10 to 11 days following the acquisition, Ms. Evans talked to Mr. Davis and/or Mr. Ferminella about continuing as the restaurant’s general manager. It is unclear what Ms. Evans was told, but there is no dispute that she was essentially in charge of the restaurant after Mr. Ferminella left Panama City following his initial 10-to- day visit. Rather than being a salaried employee, Ms. Evans was paid by the hour before and after the acquisition. On May 11, 2015, Ms. Evans learned that the restaurant’s general manager position was being advertised on- line. She texted Mr. Ferminella to inquire about the situation, and he promptly called her. Ms. Evans alleges that Mr. Ferminella told her during that conversation that Momma G’s cannot have a single mother working as a general manager because the restaurant needs someone who can work long hours, be available any day of the week, and respond on a moment’s notice if there is a problem at the restaurant. That conversation prompted Ms. Evans to file a complaint with the Equal Employment Opportunity Commission (“the EEOC”) on May 20, 2015. Momma G’s learned of Ms. Evans’ complaint on approximately May 25, 2015. On May 26, 2015, Sandy Gnad (who was responsible for Human Resources at Momma G’s) contacted Ms. Evans via telephone and e-mail. Ms. Gnad wanted to know if there was something she could do to help. Mr. Davis learned of the complaint at some point in June of 2015. After Momma G’s learned of her complaint, Sam Moore began working as the restaurant’s general manager, and Ms. Evans claims that her work hours were reduced. According to Ms. Evans, she typically worked 35 to 40 hours a week. However, her hours were allegedly reduced to 20 to 30 a week in late May. In addition, there were occasions when she would be released after two to two and one-half hours of work when she had been scheduled to work six hours. Ms. Evans was the restaurant’s highest paid hourly worker. Ms. Evans alleges that the restaurant was having trouble keeping up with demand at some point that summer. According to Ms. Evans, Mr. Davis dealt with the problem by increasing Ms. Evans’ hours and splitting the general manager duties between Ms. Evans and Mr. Moore. At that point, Ms. Evans asserts that the only difference between her and Mr. Moore was that he was a salaried employee, while Ms. Evans was still paid by the hour. Mr. Moore resigned from the restaurant at the end of June, and Ms. Evans had been acting as a de facto general manager. Ms. Evans filed a complaint of discrimination with the FCHR on July 8, 2015, alleging that she was not hired for the restaurant’s general manager position because she is a single mother. On August 7, 2015, Ms. Evans and a co-worker named Sierra Kennedy were at the restaurant prior to 10:00 a.m. and were preparing to open the store at 10:30 a.m. Mr. Davis had made an appointment to interview Stefanie Flaugher at the restaurant for the vacant general manager position, and Ms. Flaugher arrived at approximately 9:45 a.m. on August 7, 2015, for her 10:00 a.m. interview. However, Mr. Davis had not arrived, and Ms. Flaugher was standing outside the restaurant waiting for him. Ms. Evans had to make a bank deposit, and she encountered Ms. Flaugher on her way out of the restaurant. Ms. Flaugher told Ms. Evans that she was there to interview with Mr. Davis for the general manager position. Ms. Evans expressed frustration and told Ms. Flaugher that the general manager position was her job, and proceeded to the bank. When Ms. Evans returned to the restaurant, Mr. Davis was interviewing Ms. Flaugher in a booth. At some point during the interview or soon thereafter, Mr. Davis approached Ms. Kennedy and said something to the effect that, “So Scarlett quit.” When Ms. Kennedy reported that Ms. Evans had not resigned, Mr. Davis turned back to the booth where Ms. Flaugher was still sitting and stated, “No, she did not quit.” According to Ms. Kennedy, Mr. Davis appeared to be excited when he thought that Ms. Evans had resigned. However, his excitement reportedly turned to disappointment after Ms. Kennedy corrected him. Mr. Davis remained at the restaurant for approximately two hours after the interview concluded. During that time, he worked on his laptop, walked around the store, and did paperwork. He never seemed excited or upset. Mr. Davis said nothing of any significance to Ms. Evans. On August 11, 2015, Ms. Evans received a message that Ms. Gnad wanted to speak with her. After she and Ms. Kennedy finished serving the restaurant’s lunchtime customers, Ms. Evans returned Ms. Gnad’s call. Upon reaching Ms. Gnad, Ms. Evans learned that the call was being recorded and that Mr. Davis was joining the call. Upon joining the call, Mr. Davis stated that Ms. Flaugher had reported to him that Ms. Evans had used the “f- word” when they conversed outside the restaurant on August 7, 2015. Mr. Davis had hired Ms. Flaugher to be the restaurant’s general manager, and he wanted Ms. Evans to sign a letter stating that she would respect Ms. Flaugher’s authority. In addition, the letter noted that Ms. Evans had “rudely spoke[n] to a manager candidate who was waiting outside for an interview, addressing her disrespectfully and using the ‘f’ word multiple times.” Mr. Davis told Ms. Evans that she could either sign the letter or resign. Ms. Evans vehemently denied using any profanity during her conversation with Ms. Flaugher. Prior to this phone conversation, Ms. Evans had not been given a copy of the letter Mr. Davis wanted her to sign. When Ms. Evans refused to sign the letter after hearing a description of its contents, Mr. Davis fired her. Ms. Kennedy resigned that day. Testimony Adduced at the Final Hearing Ms. Evans testified that Mr. Ferminella told her in May of 2015 that Momma G’s could not have a single mother as a general manager because the position essentially requires one to be available at all times. Mr. Ferminella testified that Momma G’s has hired single mothers to fill general manager positions, and he denied ever telling Ms. Evans that she was ineligible for the general manager position. He testified that Ms. Evans had been hired as a “supervisor” in May of 2015 and that he never told anyone to reduce Ms. Evans’ hours. Mr. Ferminella testified that the highest paid hourly worker in a restaurant is typically released early on days when business is slow. Mr. Davis testified that he had agreed to hire Ms. Evans as an hourly supervisor. Her responsibilities included management of the restaurant’s daily operations, managing other employees, and purchasing. Mr. Davis denied telling anyone to reduce Ms. Evans’ hours. He also testified that the restaurant industry has a practice of releasing the highest paid hourly worker early when business is slow on a particular day. That helps keep costs down. Mr. Davis testified that Momma G’s has hired single mothers to fill general manager positions in the past. Mr. Davis testified that Ms. Flaugher told him during her interview about her conversation with Ms. Evans. According to Mr. Davis, Ms. Flaugher told him that Ms. Evans had used the “f-word” during that conversation. Mr. Davis testified that use of the “f-word” by a Momma G’s employee results in immediate termination. Nevertheless, Mr. Davis did not take immediate action. Instead, he testified that he had to “listen and investigate and take time, and then report to my direct report2/ the conversation. And, you know, that’s the way things work. Things were very – move very slowly in this business, making decisions.” Mr. Davis also testified that he hired Ms. Flaugher to be the general manager of the restaurant in Panama City. According to Mr. Davis, Ms. Flaugher accepted the offer and reported for training at a Momma G’s restaurant in Auburn, Alabama. Momma G’s even reserved a hotel room for her while she was training in Auburn. However, Ms. Flaugher supposedly left the week-long training after a few days without giving notice of any kind to Mr. Davis or anyone else associated with Momma G’s. During the final hearing, Mr. Davis attributed Ms. Flaugher’s sudden and unexplained disappearance to her being “traumatized” by her conversation with Ms. Evans on August 7, 2015. As noted above, Ms. Gnad performed human relations work for Momma G’s, and she testified that Mr. Davis “has complete authority to hire or fire whoever he wants” at a Momma G’s owned store without needing anyone else’s approval. However, her statement only applied to certain Momma G’s stores, and it is unclear whether Mr. Davis had such authority at the Panama City restaurant. Ultimate Findings of Fact Ms. Evans failed to establish that Momma G’s discriminated against her when she was not hired for the general manager’s position. Ms. Evans also failed to prove that Momma G’s retaliated against her by reducing her hours during the summer of 2015. However, Ms. Evans did prove that Momma G’s effort to discipline her, and ultimately terminate her, based on the conversation with Ms. Flaugher, was retaliation for filing complaints with the EEOC and the FCHR. The testimony of Ms. Evans and Ms. Kennedy was far more credible than Mr. Davis’s. In particular, the undersigned credits Ms. Kennedy’s testimony that Mr. Davis approached her and excitedly said something to the effect that, “So Scarlett quit.” After Ms. Kennedy corrected him, Mr. Davis appeared to be disappointed, turned back to the booth where Ms. Flaugher was still sitting, and stated, “No, she did not quit.” That testimony indicates Mr. Davis was hoping that Ms. Evans’ employment at the restaurant would come to an end. During his testimony, Mr. Davis was adamant that a Momma G’s employee would be immediately terminated for using profanity. However, when he supposedly learned from Ms. Flaugher on August 7, 2015, that Ms. Evans had used the “f-word,” he took no action whatsoever despite being at the restaurant with Ms. Evans and Ms. Kennedy for approximately two hours after the interview had concluded. His lack of prompt action belies Mr. Davis’s assertion that he needed to conduct an investigation. Any such investigation would have included a prompt discussion with the accused (i.e., Ms. Evans). In addition, Mr. Davis simply accepted a statement made by a complete stranger without conferring with an employee who was regularly in charge of the restaurant. In short, there was no true investigation and no intent to conduct one. The undersigned also has a difficult time reconciling Mr. Davis’s assertion that Ms. Flaugher was “traumatized” by her encounter with Ms. Evans when Ms. Flaugher: (a) agreed to be the general manager at the restaurant; (b) traveled to Auburn, Alabama, for one week of training; and (c) attended a few days of that training prior to leaving with no explanation. If Ms. Flaugher was so traumatized, it seems very unlikely that she would have accepted Mr. Davis’s job offer. It is even more unlikely that one so traumatized would travel from her home for a week-long training session and suddenly realize after a few days of training that she could not accept the general manager position. By attributing Ms. Flaugher’s unexplained disappearance to being traumatized by her conversation with Ms. Evans, Mr. Davis demonstrates a pretextual basis for his desire to have Ms. Evans’ employment at the restaurant end. Finally, Mr. Davis’s credibility was also undermined by his demeanor on the witness stand. He appeared to be very nervous or uncomfortable when cross-examined by Ms. Evans’ attorney, and he appeared even more nervous or uncomfortable when the undersigned questioned him about certain aspects of his testimony. In sum, Mr. Davis’s failure to obtain Ms. Evans’ version of what happened outside the restaurant on August 7, 2015, demonstrates that the effort to discipline her on August 11, 2015, was a pretext for retaliating against her for filing complaints with the EEOC and the FCHR. In other words, Mr. Davis had no interest in conducting an actual investigation and giving Ms. Evans an opportunity to rebut Ms. Flaugher’s assertion. Rather than being motivated by a desire to ascertain what actually happened outside the restaurant on August 7, 2015, Mr. Davis was motivated by a desire to take some sort of adverse action against Ms. Evans. There is no other reasonable conclusion because all of the evidence indicates that Ms. Evans was a good employee. Mr. Ferminella testified that Ms. Evans would have been considered for the general manager position if she had been willing to work the required hours and be a salaried employee. Also, even after Momma G’s acquired the restaurant, Ms. Evans continued in a leadership role, even though she was never officially designated as the restaurant’s general manager. The evidence and testimony presented at the final hearing demonstrates that there was a causal connection between the filing of Ms. Evans’ complaints and the adverse employment action at issue.
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 awarding Scarlett Evans back pay, a reasonable attorney’s fee, and any other relief she is entitled to under section 760.11, Florida Statutes. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of May, 2016.
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
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 dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2019.
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
Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
The Issue Mary Harrison's charge of discrimination dated August 4, 1995, alleges that Jodan, Inc., doing business as Manpower (Jodan), discriminated on the basis of her race and for retaliation by constructively discharging her, giving her verbal and written reprimands and a poor performance rating, by denying her training and by intimidating her. The issues for disposition in this proceeding are whether the alleged discrimination occurred, and if so, what relief is appropriate.
Findings Of Fact Jodan, Inc., is a family owned franchise of Manpower Temporary Services. Jodan provides temporary staff to its clients. It has six offices in Central Florida: two in north Orlando; one in south Orlando; and one each in Deland, Daytona, and Melbourne. Dan Gavin, president, is responsible for the day to day operations; John Gavin, his brother, is a co-owner. In March 1994, Margaret Jones was Jodan's district manager for the north Orlando (Maitland) and south Orlando (Sand Lake Road) offices. She recruited and hired Ms. Harrison to work as a service representative in the Maitland office. Shortly before that time John Gavin had asked her to recruit specifically for a minority employee as it would be helpful for the office to have a more diverse staff to serve its clients. Ms. Harrison is an African-American woman. At the time that she was hired by Ms. Jones in March 1994, her substantial work experience was in real estate and property management. Service representatives at Jodan perform the intake process with temporary employees (application, interview and testing); they take orders from clients and place temporary employees with those clients. Jodan provides a detailed training program for its employees, including its service representatives. Upon the commencement of her employment with Jodan, Ms. Harrison began a training program known as Professional Service 1 (PS-1) under the supervision of Margaret Jones. PS-1 is a self study course where the employee learns the policies and procedures of a Manpower franchise through tapes and other training materials. It is the responsibility of the employee to keep track of and complete PS-1. Normally it takes between three and six months for an employee to complete PS-1; however, it can take longer, depending on the employee's office work load at the time. Disgruntled and upset by what she perceived as criticism of her management and hiring decisions, Ms. Jones left the employ of Jodan on or about August 1, 1994. Prior to that time, Ms. Harrison had completed all but three or four minor details in the PS-1 training. Ms. Harrison was satisfied by her training under Ms. Jones and she admits that no one at Jodan attempted to prevent her from completing PS-1. In September 1994, Ms. Harrison reported to Dan Gavin that her PS-1 materials were lost. He was surprised that one of his employees would lose her training materials and he assisted Ms. Harrison in looking for the materials by, among other things, looking in an off-site storage facility for them. Ms. Harrison's materials were never found and she includes the disappearance of her training materials as one of the basis for her charge of discrimination. There is no evidence that anyone took the materials but neither is there any explanation for their disappearance. Normally, when an employee completes PS-1, a checklist is sent to Manpower headquarters in Milwaukee, Wisconsin, indicating the employee has completed the training. On the checklist, the employee is required to record the dates that she completed each aspect of PS-1. Mr. Gavin contacted Manpower headquarters and obtained a new checklist. He also set up a schedule to meet with Ms. Harrison to go over the items on the checklist and verify that all of PS-1 had been completed. At their first meeting, Ms. Harrison assured Mr. Gavin that she had completed all of PS-1. Based on their conversation, he called Manpower headquarters and verbally confirmed that Ms. Harrison had completed PS-1. Manpower records indicate that she officially completed PS-1 as of December 1, 1994. Ms. Harrison's testimony at hearing with regard to whether she actually had an opportunity to finish the training was confused and unclear as she seemed to contend that there were materials that she was supposed to send to the home office, but could not, due to the lapse of time and loss of her training package. After an employee completes PS-1, the next step is to attend PS-2, which is a week-long training seminar at Manpower headquarters in Milwaukee. PS-2 reinforces what is learned in PS-1 and teaches additional marketing skills. Employees are given a list of dates during which PS-2 will be offered and, because the training requires them to be away from home for a week, they can schedule it at their convenience. Employees can schedule PS-2 before actually completing PS-1 but must have completed PS-1 before they actually attend PS-2. Ms. Harrison could have attended PS-2 any time after December 1, 1994. In January 1995, Mr. Gavin directed the area manager, Kathy Stanford, to ensure that all eligible employees, including Ms. Harrison, sign up for and attend PS-2. The PS-2 classes fill up quickly and it was a priority for Mr. Gavin to have his employees enroll. On more than one occasion, Ms. Stanford gave Ms. Harrison a list of available classes and the opportunity to attend PS-2. However, Ms. Harrison failed to sign up for PS-2. Jodan evaluates employees' performance and salaries on an annual basis. On January 30, 1995, Ms. Harrison was given her annual evaluation. Although the "Appraisal Period" on her evaluation is listed as March 21, 1994, to September 1994, the uncontradicted evidence was that this was a scrivener's error and the appraisal period was March 21, 1994, (Harrison's date of hire) through December 31, 1994. Her review was performed by Mr. Gavin, who was familiar with her performance, with input from Ms. Harrison's immediate supervisor, Gloria Michael. Ms. Stanford sat in on all evaluations done at that time, including Ms. Harrison's, because she was the new area manager and sitting in on the reviews was one way for her to become familiar with the staff and their performances. Ms. Harrison's overall score on the evaluation was a 2.66 on a scale of 1 to 5. A score of 2 means "Below Expectations" and a score of 3 means "Consistently Meets Expectations." A service representative learns all performance areas covered by the evaluation through PS-1. Although she claims that she was evaluated in areas in which she was not trained, Ms. Harrison did not raise this issue with Mr. Gavin and she did not write in any comments on the evaluation in the space provided for employee comments. Further, the uncontradicted testimony, including that of Margaret Jones, established that Ms. Harrison did receive training in all areas of her job in which she was evaluated. Ms. Harrison did not suffer any job detriment as the result of this evaluation or the unusual circumstances surrounding her PS-1 training. She received a pay increase following the evaluation and was then the highest paid service representative. On March 29, 1995, Ms. Harrison was presented with a memorandum by Ms. Michael that addressed concerns she had with Ms. Harrison's job performance. Specifically, the memorandum addressed the following areas: Failure to be responsive to customer needs; The high number of personal calls Ms. Harrison was receiving at the office; Failure to properly match an employee's skills with a client's needs; Failure to consistently enter and update employee information in the computer system each time she spoke with an employee; Failure to open the office on time in the morning; Failure to set up computer training for applicants when she opened the office in the morning. Neither Mr. Gavin nor Ms. Stanford played any role in the preparation or presentation of this memorandum. Ms. Harrison did not suffer any adverse employment action as the result of the March 29, 1995, memorandum. Ms. Michael followed up the March 29, 1995, memorandum with a memorandum on May 3, 1995, detailing Ms. Harrison's improvement in all of the areas discussed in the March 29, 1995, memorandum. On May 15-16, 1995, Ms. Harrison and Ms. Michael (who is white) failed to provide an important client with prompt and appropriate service. As a result, Ms. Stanford counseled both women and placed them both on 90 days probation. Ms. Harrison does not contend that this action was discriminatory. On July 17, 1995, Ms. Harrison submitted a letter of resignation. In the letter she stated that she enjoyed her position as service representative. She also stated that she felt she had been subjected to discriminatory treatment. Ms. Harrison's resignation and the allegations of discriminatory treatment came as a surprise to Ms. Stanford and Mr. Gavin as Ms. Harrison had never before told them she was unhappy or felt discriminated against. In her letter of resignation, Ms. Harrison offered to meet with Mr. Gavin and Ms. Stanford to discuss her resignation, but during her exit interview she refused to discuss her allegations. Although many of Jodan's temporary employees were minorities, Ms. Harrison was the only African-American service representative. There were, however, other minorities, including Hispanic-Americans. Ms. Harrison presented her case in an articulate organized professional manner. It is clear that she felt the work environment was stressful and uncomfortable. However, she did not prove that she was discriminated against or was the object of hostile or adverse employment actions. The temporary employment agency business is highly competitive. Jodan had several large corporate clients and it had to work hard to meet the needs of those clients, sometimes on short notice. This created pressure on Jordan's regular staff that was experienced by white or non-minority employees as well as Ms. Harrison.
Recommendation Based on the above, it is RECOMMENDED: that the Florida Commission on Human Relations dismiss Ms. Harrison's charge of discrimination. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Mary A. Harrison 2356 Carborn Street Orlando, Florida 32839 Kelly T. Blystone, Esquire Moran & Shams, P.A. Post Office Box 472 Orlando, Florida 32802-0472 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding: that Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary Latham (Latham), has served as a member of the Florida Parole Commission (Parole Commission) since July 24, 1992. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an Administrative Secretary to the General Counsel's Office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be so referred to for purposes of this Complaint. Effective May 27, 1994, Ms. Billingslea was promoted to the position of Executive Secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of Senior Executive Secretary to the Chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as the Executive Secretary to Latham. Latham had previously interviewed Ms. Billingslea for an Executive Secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made Chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed the possibility of transferring Ms. Billingslea to his office with Chairman Wolson and her administrative assistant, Gene Strickland. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a Commissioner's office because the work in the Chairman's office was more administrative than that in a Commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary to Latham. Because there is only one position of Senior Executive Secretary in the Parole Commission (the Chairman's Secretary) this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Executive Secretary to Latham, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billingslea understood that the Chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no, and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will almost be as if he's going to say something, but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At the time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. Whenever the Florida Parole Commission denies parole, a "947.18" report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance of the 947.18 report. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham had been assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told Ms. Billingslea she had done nothing to make him approach her in this way, but that he did not know what had come over him lately, he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she wouldn't be working for him that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later the same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair, preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited or encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billingslea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She had tried to call the office to advise that she would be late but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Although Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal, he began to voice his dissatisfaction with her work hours after she had spurned his advances. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could take which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billingslea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office and after Ms. Billingslea had left, he asked to speak with Chairman Wolson. Latham wanted to know what was going on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching up with it in a victory signal and saying "yes." He left Chairman's Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary for the Clemency Section. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Gary Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed and public censure and reprimand. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 5th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3717E To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 2: Rejected as unnecessary. Paragraphs 3-5: Accepted. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 11: Accepted. Paragraphs 12-19: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts found. Paragraph 21: Accepted in substance. Paragraphs 22-25: Accepted. Paragraphs 26-30: Accepted in substance. Paragraph 31: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 32-33: Accepted in substance. Paragraph 34: Accepted. Paragraph 35: Accepted in substance. Paragraph 36: Accepted. Paragraph 37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraphs 39-45: Accepted in substance. Paragraphs 46-59: Rejected as irrelevant. Paragraph 60: Rejected as not supported by the evidence. Paragraphs 61-64: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 5-6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: The third and fourth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 9: The last sentence is accepted. The remainder is accepted in substance. Latham voiced his concerns after the conversation that he had with Ms. Billingslea on September 27. Paragraphs 10-11: Accepted in substance. Paragraphs 12-13: Rejected as unnecessary. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraph 16: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Paragraph 19: The last sentence is accepted in substance except the portion about sexual innuendo. The evidence did establish that he did make sexual innuendos to Ms. Billingslea. The remainder is rejected as subordinate to the facts found. Paragraph 20: The first sentence is rejected as not supported by the record. The second sentence is accepted to the extent that he never directly asked Ms. Billingslea for sex, but he did imply that he wanted a romantic liaison when he asked her to stay after work and be with him. The third, fourth, and fifth sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the record. Latham did tell Ms. Billingslea that he had a lot of political influence. Paragraph 21: The first sentence is rejected as argument. The second sentence is accepted in substance. The third sentence is accepted to the extent that that is what she thought at the time the incident occurred but later she realized that it was not a joke. The third sentence is accepted to the extent that Latham denied the incidents but rejected to the extent that it implies that the incidents did not happen. Having judged the credibility of the witnesses, I find that the incidents did happen. The last sentence is rejected as not supported by the evidence. Paragraph 22: The first four sentences are accepted in substance. The fifth sentence is rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Paragraph 23: Accepted in substance. Paragraph 24: The first sentence is accepted in substance as that is what Latham testified but rejected to the extent that it implies that the conversation did not take place. Accepted in substance that Latham got lost while going to a fund raiser but rejected that he did not go by her house and that he did not comment that she had a nice house and that her blinds were shut. Paragraph 25: The first two sentences are rejected as not supported by the evidence. The third sentence is rejected as unnecessary. The last two sentences are rejected as not supported by the evidence. Paragraph 26: The first four sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts found. Paragraphs 27-28: Accepted in substance. Paragraph 29: The first sentence is accepted in substance. The second sentence is accepted in substance as that was Latham's testimony but rejected to the extent that it implies that he did not describe the graphic sexual details of the case. The third sentence is rejected as not supported by the evidence based on the credibility of the witnesses. The fourth sentence is accepted to the extent that Latham made a comment to Ms. Henry that Ms. Billingslea was interested in the case. The last sentence is accepted in substance. Paragraph 30: Rejected as irrelevant. Paragraph 31: Having judged the credibility of the witnesses, the paragraph is rejected. Paragraph 32: Accepted that Latham disputes Ms. Billingslea's allegations but rejected that Latham's version is credible. Paragraph 33: Accepted in substance. Paragraphs 34-37: Having judged the credibility of the witnesses, the paragraphs are rejected. Paragraph 38: The first and second sentences are accepted in substance. The last sentence is accepted to the extent that Latham did not intentionally restrain Ms. Billingslea but rejected to the extent that it implies that Latham was not asking Ms. Billingslea to stay after work for the purpose of seeking sexual gratification or favors. The remainder is rejected as subordinate to the facts found. Paragraph 39: The first sentence is rejected as constituting argument. The last sentence is rejected as not supported by the evidence. Paragraphs 40-41: Accepted in substance. Paragraph 42: Rejected as constituting argument. Paragraph 43: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 44: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 45: Accepted in substance. Paragraph 46: Rejected as irrelevant. Paragraph 47: Rejected as constituting argument. Paragraphs 48-49: Rejected as irrelevant. Paragraph 50: Rejected as constituting argument. Paragraphs 51-53: Rejected as irrelevant. Paragraph 54: Rejected as constituting argument. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as constituting argument. Paragraph 57: The first two sentences are accepted in substance. The third sentence is accepted as that is what Latham said but rejected as being true. Given other witnesses accounts of Ms. Billingslea's appearance on that date, it is inconceivable that Latham could not have known that she was not sick. The last two sentences are subordinate to the facts found. Paragraph 58: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Mark Herron, Esquire Post Office Box 10555 Tallahassee, Florida 32302-2555 Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
