The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on October 5, 2007.
Findings Of Fact Petitioner is an African-American female who was hired by Respondent as a temporary employee on January 17, 2005. She continued to be employed by Respondent until she resigned her position on November 7, 2007. Respondent, PPS World Medical (PPS), is an employer within the meaning of the Florida Civil Rights Act. PPS is a distributor of medical supplies from manufacturers to physicians’ offices. Crystal Marx interviewed Petitioner and hired her as a temporary employee in January 2005. Petitioner worked for several months as a temporary employee, and her performance was very good. Ms. Marx recommended to Renee Placette that Petitioner be hired as a regular, full-time employee. Ms. Placette had an opportunity to observe Petitioner’s performance as a temporary employee. Ms. Placette made the final decision to hire Petitioner in a full-time position in May 2006 as a supply chain expediter. Ms. Marx and Ms. Placette are Caucasian females. After three months of employment, Ms. Marx decided to conduct a 90-day performance review of Petitioner. It was not standard procedure in the department where Petitioner worked to receive a 90-day review. However, Ms. Marx made the decision to conduct the review to let Petitioner know about some concerns so Petitioner would have an opportunity to make improvements before her annual review. In a meeting to discuss the 90-day review, Ms. Marx addressed the following issues with Petitioner: work that was not being completed correctly which resulted in Ms. Marx's receiving e-mails concerning mistakes Petitioner was making; issues Petitioner was having with her coworkers; and Petitioner’s practice of skipping lunch and leaving an hour early without prior approval. The score received by Petitioner on her 90-day review did not affect Petitioner’s compensation in any way. When initially hired, Ms. Marx was Petitioner’s direct supervisor. At some point in time, Patricia Barnard was brought in as another layer of supervision. Ms. Barnard worked for Ms. Marx. For a period of time, Petitioner e-mailed Ms. Barnard when she went to, and returned from, her 15-minute break. This issue initially arose when several people asked Ms. Barnard where Petitioner was when she was away on her break. Ms. Barnard discussed this with Petitioner. Petitioner then suggested that she e-mail Ms. Barnard when she left on her break and upon her return. Ms. Barnard did not require Petitioner to do this. When Petitioner stopped sending these e-mails, Ms. Barnard did not instruct Petitioner to resume sending the e-mails or take any action regarding the e-mails. During a period of time when Petitioner was on medical leave, two accounts were reassigned to other employees while she was away. One of the accounts was assigned to another employee, Tracy Hundley, who is African-American. After that, Ms. Barnard and Ms. Marx took over the account for a while, later assigning it to Tara Nelson, another African-American employee. In any event, Petitioner did not receive any extra pay when she handled those accounts, and did not receive any cut in pay when these accounts were reassigned to others. On November 17, 2006, Petitioner received a Documented Verbal Warning for failure to properly notify management of her absence. On August 15, 2007, Petitioner received a Final Written Warning for unprofessional and inappropriate behavior towards an employee relations representative. On May 8, 2007, Ms. Barnard completed a job performance annual review of Petitioner. On her annual review, Petitioner received a score of 80, which is an average score. Ms. Marx approved the review as prepared by Ms. Barnard. Allegations of failure to promote Petitioner applied for the position of “WM Supply Chain Procurement Specialist” in November 2006. Petitioner again applied for the Procurement Specialist position in May 2007. Petitioner received an e-mail from Ms. Placette advising her that three people were hired with “a lot of buying experience.” In July 2007, Petitioner applied for the position of IT Governance Process Analyst. She received a letter from the IT Governance Process Manager of PSS which informed her that she was not selected for the position. There is nothing in the record establishing the qualifications required for these positions, whether Petitioner met these qualifications, or even whether these positions could be considered as promotions. Further, no competent evidence was presented as to the identity, qualifications, or race of the persons who were hired into these positions. Other allegations Petitioner also alleged that she was paid less then what had been promised, $11.54 an hour, in her letter offering employment. Petitioner contends that she was instead paid one cent an hour less, i.e., $11.53 per hour. The official pay stub reflects her rate of pay to have been $11.54 per hour. Further, Petitioner alleged that she was, at some point, given a new wireless headset which was replaced by a used one that she described as “yucky.” Employees who work in “confirmation” received wireless headsets because those employees needed to be able to go to the fax machine and the printer while on the telephone with a vendor. Petitioner was an “expediter” not a “confirmation” person, and did not need to be able to go to the fax machine or the printer as often while on the telephone. Petitioner resigned her position on November 2, 2007. At the time she resigned, she informed her co-workers that she owned her own t-shirt business and resigned to run her own company full time. At hearing, Petitioner asserted that she resigned because there was a “different atmosphere,” that she was stressed, and could not work there anymore. There was no competent evidence presented that establishes or even suggests that any employment action taken by Respondent toward Petitioner was based on race.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2008.
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, whose correct name is AIG Marketing, Inc. is a subsidiary of American International Group, Inc. ("AIG"). Respondent supplies marketing services for AIG. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent as an "insurance consultant" on April 22, 2003. Petitioner resigned her employment by letter dated February 17, 2004. Petitioner's last day at work for Respondent was March 2, 2004. Petitioner worked at Respondent's facility in Seminole County, Florida. An insurance consultant's primary job responsibility is to answer incoming telephone calls from prospective customers seeking information concerning automobile insurance. Respondent has an anti-discrimination and anti- retaliation policy. Respondent has a published policy specifically prohibiting discrimination and retaliation. The policy states that discrimination, including that based upon race and color "is strictly prohibited." The policy states that any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination. The policy states that Respondent will not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to the Respondent's attention, or for participating in an investigation of an alleged act of harassment. Respondent's management employees support and enforce its policies against discrimination and retaliation. After she was hired in April 2003, Petitioner received training for a period of approximately 10 weeks. Thereafter, on approximately July 1, 2003, she was placed on a "team" with other insurance consultants. The Petitioner's immediate supervisor was Melody Garcia-Muniz. While on Ms. Garcia-Muniz' team, Petitioner also received instruction, also called "coaching," from Nirmala Sookram. Ms. Garcia-Muniz is an Asian female. Ms. Sookram is an Indian female. Approximately one month after she was placed on Ms. Garcia-Muniz' team, on or about August 2, 2003, Petitioner had a confrontation with Ms. Sookram. Thereafter, by correspondence dated August 2, 2003, Petitioner wrote Respondent's Human Resources Office and Ms. Garcia-Muniz complaining of "the work condition, I have been experiencing with team leader Nirmala Sookram." As a result of Petitioner's August 2, 2003, letter, Respondent replaced Ms. Sookram as the team coach with another coach. Respondent also immediately investigated the allegations contained in Petitioner’s August 2, 2003, correspondence. This investigation was conducted by Ms. Garcia-Muniz and another management employee Dawn Bronwnlie. No evidence of discrimination was revealed. In approximately September or October 2003, Petitioner was transferred from Ms. Garcia-Muniz' team to a team supervised by Beverly Swanson. Ms. Swanson is a Caucasian female. This transfer was done pursuant to a reorganization of Respondent's shifts. Respondent had two business practices which are relevant to this matter and which are acknowledged by Petitioner. First, Respondent requires that its insurance consultants respond to in-bound calls from customers as soon as possible. Respondent has a policy prohibiting insurance consultants from making out-bound calls if there are in-bound calls waiting. Out-bound calls would typically be follow-up calls between an insurance consultant and a prospective customer. Second, Respondent has a policy prohibiting one insurance consultant from accessing an insurance quote being worked on by another insurance consultant. This policy is intended to prevent one insurance consultant from "stealing" a customer from another insurance consultant. Petitioner consistently violated Respondent's policy against making out-bound calls when in-bound calls were waiting. She was counseled with respect to this policy on August 5, 2003. Petitioner continued to violate this policy and received a verbal warning on September 19, 2003. The verbal warning confirmed Petitioner had been counseled in August with respect to this policy. The verbal warning confirms that for a 14-day period Petitioner made 649 out-bound calls while only receiving 444 in-bound calls. The verbal warning stated that at no time should Petitioner's out-bound calls exceed her in-bound calls. With respect to Respondent's policy prohibiting one insurance consultant from accessing a quote for a customer of another insurance consultant, Petitioner was advised on November 7, 2003, about the proper procedures to handle such situations. Though Petitioner claimed that she did not know accessing a quote for another insurance consultant's customer was inappropriate until November 7, 2003, she admits that on that date she was so advised and from that date forward knew that it was a violation of Respondent's policies. Nonetheless, on December 10, 2003, Petitioner's then supervisor Ms. Swanson was advised that Petitioner had accessed a quote for another insurance consultant's customer in violation of Respondent's policies. This occurred on December 9, 2003. Two days later on December 12, 2003, another insurance consultant, Steve Mintz advised Ms. Swanson that Petitioner had also accessed one of his insurance quotes. Ms. Swanson investigated and determined that Petitioner had, in fact, violated Respondent's policies by accessing the quote of another insurance consultant's customers. As part of that investigation, Ms. Swanson interviewed Petitioner and reviewed reports. Petitioner's statements were inconsistent with the reports, and Ms. Swanson ultimately determined that Petitioner had been untruthful with her during the investigation. As a result of Petitioner's violation of the policy, on December 16, 2003, Ms. Swanson issued Petitioner a written warning for inappropriate sales conduct. The written warning noted that Ms. Swanson had thoroughly investigated "several" complaints about Petitioner's sales conduct and confirmed that Petitioner had processed sales incorrectly despite several discussions with other supervisors as well as Ms. Swanson. The written warning also confirmed that Petitioner had been untruthful with Ms. Swanson during Ms. Swanson's investigation into this matter. As a result, Ms. Swanson placed Petitioner on a written warning which advised her that should her practices continue, her employment would be terminated. In accordance with Respondent's policies, Petitioner was ineligible to post for a position, switch shifts, or work overtime. Immediately after the December 16, 2003, meeting during which Ms. Swanson issued the written warning, Petitioner contacted Respondent's Human Resources department. As a result, Louisa Hewitt, Respondent's Human Resources professional, undertook an independent investigation to determine the accuracy or inaccuracy of Ms. Swanson's findings which formed the basis for the written warning. Ms. Hewitt is a Hispanic female. Ms. Hewitt's independent investigation determined that Petitioner had, in fact, improperly processed sales and inappropriately accessed quotes. Accordingly, Ms. Hewitt met with Petitioner on December 31, 2003. In attendance was another of Respondent's managers Patricia Brosious. During this meeting, Ms. Hewitt advised Petitioner that the written warning was appropriate. Despite the fact that the December 16, 2003, written warning prohibited Petitioner from switching shifts, Respondent allowed Petitioner to switch shifts in order to allow her to care for an ill relative. This request was received on or about December 21, 2003, and granted on December 22, 2003. Dawn Bronwnlie (one of the Respondent's assistant managers who investigated Petitioner's August 2003 complaint) requested the accommodation on Petitioner's behalf by e-mail dated December 21, 2003, sent to, among others, Petitioner's immediate supervisor Ms. Swanson. Petitioner and Respondent management employee Patricia Brosious were copied on the e-mail. Approximately one month later, Petitioner again requested a shift change. By e-mail dated January 26, 2004, Respondent's management employee Patricia Brosious informed Petitioner of all of the shifts that were open at that time to which a transfer was possible. Ms. Brosious copied Ms. Hewitt and Timothy Fenu on this e-mail. Mr. Fenu is the manager of Respondent's facility in Lake Mary, Florida, and the highest- ranking employee of Respondent at that facility. On January 27, 2004, Petitioner responded to Ms. Brosious' e-mail, which had advised Petitioner of the shifts that were available. In response, Mr. Fenu sent an e-mail to Petitioner advising her that the shifts offered to her were based on business need and current unit sizes. Mr. Fenu advised Petitioner that her response was inappropriate and requested her to advise Respondent if she desired to change shifts. After initially scheduling a meeting with Mr. Fenu, Petitioner canceled the meeting by e-mail dated February 10, 2004. Petitioner resigned her employment February 17, 2004. Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia McGee Post Office Box 550423 Orlando, Florida 32855 Daniel C. Johnson, Esquire Carlton Fields, P.A. Post Office Box 1171 Orlando, Florida 32802 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, The Meltdown on 30A (“The Meltdown”), discriminated against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott (collectively, the “Petitioners”), in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact The Meltdown is a restaurant operated out of a 23-foot- long Airstream trailer. It does not have tables and chairs for customers to consume their meals; it is a “to go” establishment. The trailer can comfortably hold about five people when it is in operation. The Meltdown operates on Highway 30A (hence its name) and is generally parked near the beach in Seaside, a tourist area. The Meltdown serves between 500 and 700 sandwiches per day. The restaurant is one of five owned by Mr. Shirley and managed by Mr. Haile. In February 2016, The Meltdown switched its payroll functions from Oasis to ECB. The change resulted also in a new method of signing in, on-line, by which employees were able to be paid. D’Shante L. LeBeaux is an African-American woman. At final hearing, she claimed to have a disability, but did not raise that as a basis for the discrimination claim against The Meltdown. She began working for The Meltdown in June 2016. She voluntarily left her employment when her means of transportation, Latanya Scott, resigned around August 19, 2016. While working for The Meltdown, Ms. LeBeaux was never written up or disciplined for missing work or performing poorly. Ms. LeBeaux did not cite any instance of discriminatory actions or words by her employer. She claimed that the manner in which her schedule was handled, i.e., that she did not always work the same hours as Latanya Scott, constituted discrimination. The testimony was not persuasive. Latanya Scott is an African-American woman. She is married to Erin Scott, an African-American woman. Latanya Scott was hired on June 24, 2016. On August 10, 2016, she provided a letter to The Meltdown which stated her intent to resign as of August 19, 2016. As of that date, she voluntarily ceased working for The Meltdown. Her reason for resigning was, primarily, that Mr. Haile had not shown any compassion when Latanya Scott’s grandmother got sick (and ultimately passed away). While working at The Meltdown, Latanya Scott was written up for being belligerent to other employees. She was passed over when a manager, Carolyn Bramlett, left her position and a new manager was needed. No one was hired, however, to replace Ms. Bramlett; Mr. Haile simply took over the responsibilities himself. Erin Scott is an African-American woman and is the wife of Latanya Scott. She was hired at The Meltdown on May 29, 2016, and continues to work there. She cited to no discriminatory actions by The Meltdown, but suggested that other related couples may have been treated somewhat differently than were she and her wife. Her complaints were neither confirmed nor deemed discriminatory. Erin Scott continues to work in a supervisory capacity for The Meltdown and is considered a good employee. Each of the Petitioners stated that they never received an employee handbook until recently, i.e., during the pendency of this administrative hearing. They never saw, therefore, the nepotism policy set forth in the handbook. The owner and manager maintain that all employees are given the handbook when they “signed in” as an employee the first time. Based upon the facts of this case, whether or not the Petitioners were provided an employee handbook or knew about the nepotism policy is essentially irrelevant to their claims of discrimination. There were a number of family members working at The Meltdown when Mr. Haile first began managing. When ECB came in, a nepotism policy was enacted that prevented any further employment of family members. The family members who were already there were grandfathered in, i.e., they were not asked to resign. Mr. Haile does not remember Ms. LeBeaux raising the issue of a disability at the time of her hiring. She did begin asking for fewer hours, no more than 25 per week, at some point and Mr. Haile tried to accommodate her. He learned that she and Latanya Scott were riding together, which created a small problem, but he attempted to work around that issue as well. Mr. Shirley operates all of his restaurants without tolerating discrimination or harassment. His credible testimony was that the Petitioners seem to have a problem with how the restaurant was managed rather than having a complaint about discrimination. He genuinely appears to care about his employees and to wish to do the right thing vis-à-vis his employees. In short, there was no credible or persuasive evidence of discrimination against Petitioners by The Meltdown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, The Meltdown on 30A, did not discriminate against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott, and their Petitions for Relief should be denied. DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 1st day of September, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) D'Shante LaCheryl LeBeaux Apartment B 190 Patrick Drive Defuniak Springs, Florida 32433 (eServed) Timothy Tack, Esquire Miller Tack & Madson Suite 135 3550 Buschwood Park Drive Tampa, Florida 33618 (eServed) Erin M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Latanya M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: On March 11, 2004, Petitioner, who was 73 years old, submitted an application for employment to Respondent. Respondent is in the business of transporting passengers to and from airports in Melbourne and Orlando, Florida. It has four regular employees and approximately 20 independent contractors. Petitioner maintains that in an interview with Sandra Tant, president of the Respondent corporation, he was advised that he was "too old" to be employed. This is the sole basis of his claim. Respondent specifically denies having made any statement, either directly or indirectly, to the effect that Petitioner was "too old" to be hired. Respondent testified that Petitioner's motor vehicle operator's license had a "hole" punched through the year portion of the date of birth. This occasioned inquiry into Petitioner's age, although he appears to be his stated age. Petitioner denied that there is a hole in his motor vehicle operator's license. In the copy of Petitioner's motor vehicle operator's license, which is part of Respondent's Exhibit 1, the year is obliterated. When asked to produce his motor vehicle operator's license at the hearing, Petitioner stated that he did not have it. Respondent indicated that Petitioner was disqualified from employment by insurance requirements. Respondent presented a list of Respondent's insurer's driver eligibility standards which indicate that "[T]wo years of driving experience with a like vehicle (limousine, van &/or bus) is preferred." Sandra Tant's testimony on relevant matters is more 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 finding that Petitioner did not discriminate against Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William Monzidelis 2460 Alicia Lane Melbourne, Florida 32835 Sandra Tant, President Melbourne Shuttle, Inc. 1 Air Terminal Parkway Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.
The Issue Whether Respondent committed one or more unlawful employment practices against Petitioner as alleged in the subject Petition for Relief.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was an employee of Respondent with permanent status in the state career service system. Petitioner began his employment with Respondent on February 26, 2001, and was assigned to the Lake Worth area until his employment was terminated on January 30, 2009. During his tenure with Respondent, Petitioner worked as a K-9 officer as the handler of a dog trained to detect drugs. Petitioner was frequently involved with high-risk traffic stops. Petitioner received a “meets standards rating” on his most recent performance evaluation. Prior to the events that led up to this proceeding, Petitioner had no history of being disciplined by Respondent. Dr. Richard Marques specializes in internal medicine and treats a broad spectrum of medical issues including endocrine problems. He has been Petitioner’s physician for eight years. Prior to September 2003, Petitioner began to experience fatigue, irritability, and low energy. Petitioner testified that he slept up to 16 hours some days. During that time, and at all times relevant to this proceeding, Petitioner was working his assigned duties. Those duties included a 40-hour shift plus occasional overtime, primarily on weekends. At the request of Dr. Marques, on September 12, 2003, Petitioner presented for blood work at LabCorp, an independent, reputable, testing lab. From the results of the testing, Dr. Marques determined that Petitioner suffered from low testosterone levels or a condition known as hypogonadism. Dr. Marques recommended that Petitioner seek treatment for his testosterone deficiency from a physician or facility specializing in problems of the endocrine system. Dr. Marques did not recommend a particular physician or facility to Petitioner. Instead, Dr. Marques left that decision to Petitioner. Dr. Marques contemplated at the time of his recommendation that Petitioner would be examined in a hospital or other medical facility by a doctor specializing in the endocrine system. Dr. Marques testified that there are two types of hypogonadism, with one type originating from the adrenal gland and the other originating from the pituitary gland. Testing of the type an endocrinologist would do in a testing facility such as a hospital is required to determine the source of the testosterone secretion. Dr. Marques referred Petitioner for further evaluation because he does not do the type of testing that an endocrinologist does. After reading an advertisement in a magazine for a facility named PowerMedica in January 2004, Petitioner sought treatment from that facility. After reviewing PowerMedica’s website, Petitioner concluded that it was a licensed medical facility and submitted a form medical history. In response to his submittal, someone purporting to be from PowerMedica instructed Petitioner to submit a blood sample for analysis by LabCorp. Petitioner complied with that request. Thereafter, Petitioner received a telephone call from someone at PowerMedica who purported to be a doctor. Following that telephone conversation, Petitioner received at his home via Federal Express a shipment that contained testosterone, which is an anabolic steroid. An anabolic steroid is, pursuant to the provisions of Section 893.03(3)(d), a Schedule III controlled substance. Section 893.13(6)(a), Florida Statutes, provides as follows: (6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. At no time relevant to this proceeding did Petitioner enter the building that housed PowerMedica, nor was he physically examined by anyone associated by PowerMedica. Petitioner followed up with Dr. Marques while Petitioner was taking the anabolic steroids. Dr. Marques considered Petitioner’s treatment to be appropriate. Dr. Marques saw no signs that Petitioner was abusing the anabolic steroids, and noted that Petitioner’s condition improved. Petitioner stopped receiving anabolic steroids from PowerMedica in October 2004. Dr. Marques wrote a note on September 22, 2003, reflecting, in relevant part, the following: “. . . given the severity of his high viral titer,4 I have asked him to change his night shift duty to day time.” After Petitioner requested that he be reassigned to day-time duty and presented that note to his superiors, Respondent reassigned Petitioner to day duty. At all times relevant to this proceeding, Petitioner was able to perform his job duties. Other than the request for a change from the night shift to the day shift, Petitioner did not tell Respondent that he was having difficulties performing his duties. At no time prior to his interview on July 10, 2008, which will be discussed below, did Petitioner tell Respondent that he was taking anabolic steroids, that he suffered from low testosterone levels, or that he suffered from hypogonadism. At no time did Petitioner request that he be evaluated to determine whether he was fit for duty. In early 2005, it became public knowledge in south Florida that the U.S. Food and Drug Administration (USFDA), working in conjunction with the Broward County Sheriff’s Office (BCSO), was investigating PowerMedica based on allegations that it had unlawfully sold steroids and Human Growth Hormones. As part of its investigation, the USFDA seized records pertaining to PowerMedica’s customers. There was no evidence that any information seized by the BCSO or the USFDA was illegally seized. The joint investigation culminated in the closure of PowerMedica’s operations. In March 2008, a sergeant and a lieutenant employed by Respondent and assigned to its Professional Compliance Bureau met with a sergeant employed by BCSO. During that meeting, the BCSO sergeant showed Respondent’s employees a list containing PowerMedica’s customers. That list contained Petitioner’s name. At Respondent’s request, in April 2008, the USFDA provided copies of records to Respondent that had been seized from PowerMedica. That information provided details as to Petitioner’s dealings with PowerMedica. On July 10, 2008, Petitioner was subjected to a formal interview by representatives of the Respondent. In that interview, Petitioner admitted his dealings with PowerMedica and, while denying any wrongdoing, admitted the material facts set forth above pertaining to those dealings. Petitioner declined to divulge the underlying condition for which he sought treatment. Further, Petitioner acknowledged that Dr. Marques had informed him that his insurance company would likely not pay for his treatment from PowerMedica or for similar treatment. Specifically, Petitioner admitted that he obtained testosterone without being examined by a PowerMedica physician, he admitted that he knew about the investigation and subsequent closure of PowerMedica, and he admitted that he knew the reasons for the closure of PowerMedica. Petitioner admitted that he never volunteered to come forward to Respondent or any other law enforcement agency to discuss his dealings with PowerMedica. Petitioner referred to himself as a victim of PowerMedica’s fraudulent practices, but he admitted that he never advised Respondent prior to his interview that he had been a victim of PowerMedica. On September 9, 2008, Respondent assigned Petitioner to administrative duty that was to be served at Petitioner’s residence from 8:00 a.m. to 4:00 p.m. Monday through Friday. The letter advising Petitioner of this assignment and setting the parameters for the assignment, included the following, beginning at the second full paragraph: You will remain on administrative duty until further notice. This action is being taken based upon the fact you are under investigation by this agency. You are to turn in all of your assigned division equipment including uniforms, badges, firearms, any department identification, and other division property. Your approval to work off-duty police employment (ODPE) and/or any type of agency secondary employment has been withdrawn for the duration of the administrative duty. Your eligibility to resume OPDE/secondary employment will be reviewed by your troop commander at the conclusion of the administrative duty assignment. Your failure to comply with this directive will subject you to disciplinary action. On November 14, 2008, Petitioner filed his Complaint of Discrimination with the Florida Commission on Human Relations. After that date, but before his termination, Petitioner requested permission to be able to work as a driver for Federal Express during hours other than the hours he was serving his administrative duties. Respondent denied that request. While Petitioner asserts that the denial was in retaliation for his filing the Complaint of Discrimination, that assertion is based on supposition. Petitioner presented no direct evidence to support his assertion and any circumstantial evidence is insufficient to establish the assertion. By letter dated January 14, 2009, and received by Petitioner on January 20, 2009 (the termination letter), Respondent terminated Petitioner’s employment. Approximately 20 days after his termination, Respondent retrieved from Petitioner the dog that Petitioner had handled for approximately three years. Petitioner asserts that Respondent took his dog in retaliation for his amending his Complaint of Discrimination to include a claim of retaliation relating to the denial of the request to work part-time for Federal Express. Again, Petitioner’s assertion is based on supposition and is not supported by direct or circumstantial evidence. The termination letter, which is part of Petitioner’s Exhibit 11, sets forth extensive factual allegations pertaining to Petitioner’s dealings with PowerMedica as the basis for the termination. The letter also set forth the statute and policies that Petitioner had allegedly violated. The letter cited the following as “Aggravating Circumstances”: This case is aggravated because through your training, work experience, and knowledge of the law you are held to a higher standard of reasonableness and conduct. You should have been well aware of the stigma attached to the type controlled substances you purchased and used, especially Petitioner points to Respondent’s characterization of anabolic steroids as having a “stigma” as evidence that Respondent discriminated against him based on his disability. That argument is without merit. The greater weight of the credible evidence established that Respondent terminated Petitioner’s employment based on its determination that Petitioner had unlawfully obtained and consumed a Schedule III controlled substance without obtaining a lawful prescription and because he failed to come forward with information about PowerMedica after he knew that PowerMedica was being investigated by the USFDA and the BCSO. Petitioner did not establish that Respondent’s articulated reasons for its employment decision were pretexts for an unlawful employment practice. Indeed, there was no evidence that as of the date of the termination letter, Respondent knew the nature of Petitioner’s medical condition, or that it had any reason to perceive him as being disabled.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 23rd day of November, 2009.
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue The issue presented is whether Respondent City of Gainesville committed an unlawful employment practice when it terminated Petitioner's employment.
Findings Of Fact Petitioner is a white male. Petitioner's employment as a police officer was terminated by Respondent City of Gainesville on September 17, 2008. On the evening of June 26, 2008, Petitioner was voluntarily working an extra duty assignment at the Super Wal- Mart store on Northeast 12th Avenue in Gainesville. Wal-Mart had been experiencing problems with juveniles entering the store in large groups and causing disturbances and property damage. At approximately 11:15 p.m., Ms. Felicia Stallworth, a black female, pulled into a handicapped-parking space and hung her handicapped-parking decal from her rear-view mirror. She was accompanied by two children: her twelve-year-old son and her seven-year-old niece. At the time, Petitioner, who was in uniform and wearing his badge, was engaged in conversation with the occupants of a vehicle parked in another handicapped-parking space. Stallworth and the children exited her vehicle and began walking to the store's entrance. Because Stallworth was talking on her cell phone while she was walking, she heard Petitioner say something but did not know what he said. She stopped walking and asked him what he wanted. Petitioner rudely and loudly demanded to see her documentation to prove she was entitled to park in a handicapped-parking space. Stallworth complied by walking back to her vehicle, sitting in the driver's seat with the driver's door open, and retrieving her handicapped-parking registration from her glove compartment. While she was doing so, Petitioner, who was standing just outside the car door, was shining a flashlight into her car so that it was shining in her face. She told him several times to move the flashlight because she could not see, but he ignored her and continued to shine it in the same manner. Concerned for the safety of the children who were standing at the back of the car on the passenger side, she instructed the children to get back in the car so as to be out of the path of passing vehicles. Petitioner rudely and loudly told them to stand in front of the car instead. The children complied. Stallworth retrieved the registration and handed it to Petitioner. She also handed him her placard. She then attempted to get out of the car so she could put her purse on the hood of the car so she could find her driver's license. As she stood up, Petitioner crossed his arms in front of his chest in a blocking motion and, using them, shoved her forcefully against her car and then down into the driver's seat. Her glasses were knocked askew, and the side of her face and earlobe began to burn, likely from being scraped against the doorframe. After she was shoved back into her car, Stallworth was able to find her driver's license in her purse, and she handed it to Petitioner. When Petitioner finished examining her placard, her placard registration, and her driver's license, he handed the documents back to Stallworth and told her to have a nice day. Petitioner walked to the door of the store, turned and looked at Stallworth, and stood there, apparently laughing at her. Some of the numerous witnesses to this encounter between Petitioner and Stallworth came up to her, inquired as to how she was, and walked into the store with her. Petitioner followed Stallworth while she was in the store. When Stallworth left the store, she saw Petitioner walk behind her car, write down her license tag, and then get into his vehicle. Stallworth thought he was "running her tag" and became afraid of what he might do to her next. She called a relative who worked for the Alachua County Sheriff's Office and asked that person to come to Wal- Mart and watch her leave. After calling, she went back into the Wal-Mart to wait. When she came out again, she and Petitioner did not interact. Before Petitioner shoved her against and then into her vehicle, Stallworth had made no threatening remark or gesture that would cause Petitioner to have any concern for his safety. After Stallworth returned to her home, her back started hurting, and her face and earlobe still burned. She telephoned the City of Gainesville Police Department and complained about Petitioner's unacceptable treatment of her. The complaint was forwarded to Sergeant Lance Yarbrough, the Sergeant on the midnight shift. At 1:45 a.m., when he had "cleared" the matter he was working on, he called Stallworth. She described what had happened, including Petitioner's demeanor and her injuries. She told Yarbrough she had obtained the names and telephone numbers of some of the witnesses who had seen the entire encounter. After attending to some additional duties, Yarbrough arrived at the Wal-Mart at 3:00 a.m. to talk to Petitioner about his use of force on a disabled person. Petitioner's version of what had happened essentially matched Stallworth's, including admitting he had "pinned" her to her vehicle. By the end of their conversation, Petitioner had become confrontational about defending what he had done and demanded of Yarbrough, "Do you have a problem with that?" Yarbrough answered Petitioner in the affirmative. Yarbrough tried to obtain a copy of Wal-Mart's video surveillance tape, but a copy of the tape could not be made by Wal-Mart employees at that hour. After he left Petitioner, Yarbrough, a white male, completed an Administrative Investigation Referral Form regarding Petitioner's treatment of Stallworth, which he considered a violation of the City's Policies and Procedures Number 19, Rule 19. That Form is, essentially, a referral to the police department's internal affairs office. He filed that form on June 27, 2008, in his name and in Stallworth's name. Stallworth filed her own form on that same date. Wal-Mart has a policy of releasing copies of its video surveillance tapes only to law enforcement officers conducting official business. Internal Affairs investigator Sergeant Jorge Campos, a white male, contacted Wal-Mart and arranged to obtain a copy of the video of Wal-Mart's parking lot showing Petitioner's encounter with Stallworth. When he later called Wal-Mart to make sure the copy was ready, he was told that another police officer had come to pick it up, and the copy had been given to him. Campos requested an additional copy and when he went there to pick up that copy, the Wal-Mart loss prevention employees showed Campos the video and also a video of Petitioner picking up the copy of the video that had been made for Campos. Since Petitioner had come there in a police car and in uniform, they had assumed that Petitioner was obtaining the copy of the video for official purposes. In fact, Petitioner never reported to the police department that he was conducting an investigation and that he had obtained evidence of his encounter with Stallworth. Further, he never turned over to the police department his copy of the video so it could be preserved as evidence in the evidence room, as required by department policy. Petitioner did not obtain the video for law enforcement purposes, therefore, but rather for personal purposes. Campos watched the copy of the surveillance video he had obtained from Wal-Mart in conjunction with his investigation. He also interviewed and obtained sworn statements from Yarbrough, from Stallworth, and from all of the identified witnesses who were willing to speak with him about what they saw. During the course of the internal affairs investigation, it was discovered that Petitioner had also repeatedly contacted Stallworth's personal physician, allegedly in his capacity as a police officer, to ascertain what Stallworth's disability was that would have made her eligible for a handicapped placard. Eventually, Petitioner did speak with a doctor in that office who disclosed Stallworth's disability. Campos attempted to interview Petitioner, but Petitioner called in sick and did not appear for the scheduled appointment. Campos' further attempts to interview Petitioner were unsuccessful. At the conclusion of his investigation, Campos prepared his report and consulted with the Chief of Police as to an appropriate disposition of the matter. It was concluded that Petitioner had violated Rule 19 regarding his encounter with Stallworth by his (1) excessive use of force, (2) obtaining a video recording under the color of a law enforcement officer for personal use, and (3) obtaining medical information under the color of a law enforcement officer without proper legal service. It was determined that Petitioner's employment should be terminated. Policy 19, Rule 19 prohibits "[i]mmoral, unlawful, or improper conduct or indecency, whether on or off the job[,] which would tend to affect the employee's relationship to his/her job, fellow workers' reputations or goodwill in the community." The range of penalties for the first offense is from instruction plus 5 days' suspension up through dismissal, and for the second offense is dismissal. Petitioner exercised his right to file a grievance regarding his termination and participated in a multi-level grievance process within the City. His grievance was unsuccessful, and he was terminated from his employment as a police officer. At no time during Petitioner's conversation with Sergeant Yarbrough, during the internal affairs investigation, or during the City's grievance process did Petitioner raise any allegation of disparate or discriminatory treatment of him by the City due to his race or his sex. Sergeants Yarbrough and Campos are, like Petitioner, white males.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 16th day of July, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 16th day of July, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Jarrod Rappaport 402 Northwest 48th Boulevard Gainesville, Florida 32607 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not the Petitioner timely filed his charge of unlawful employment discrimination with the Florida Commission on Human Relations. 1/
Findings Of Fact Based upon the evidence adduced at the hearing herein, including Petitioner's testimony, the following relevant facts are found. Petitioner, Richard L. Schmitt, was initially employed by the Respondent, City of Ft. Lauderdale Police Department, as a police officer on January 7, 1980. Petitioner's employment relationship was terminated on February 11, 1983. On February 6, 1984, Petitioner filed the instant charge of employment discrimination with the Florida Commission on Human Relations. Petitioner acknowledges that he was aided and assisted by counsel in filing unlawful discrimination charges since his separation from employment with Respondent, City of Ft. Lauderdale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing the charge filed herein by Petitioner. RECOMMENDED this 21st day of February, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of February, 1985.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of his age in violation of section 760.10, Florida Statutes.
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the pre-hearing stipulation. Mr. Ferrell is a 65-year-old male, who is employed at Florida A & M University as a registrar officer. Mr. Ferrell has worked in the registrar’s office in various positions since 2003. Florida A & M University is a university located in Tallahassee, Florida. At all times material to this matter, Florida A & M University employed more than 15 full-time employees. Mr. Ferrell alleged that four employees, Lefevere Jordan, Cornelius McGlockton, Dyamond V. Smith, and Antonio Witherspoon were treated more favorably than he was treated because they are younger than he is. Specifically, he asserted that Mr. Jordan received a pay raise; Mr. McGlockton and Mr. Witherspoon received a promotion; and Ms. Smith was hired at a higher pay rate for the same position that he holds (registrar officer). Mr. Ferrell’s job responsibilities as a registrar officer include maintaining the state course numbering system, maintaining the university course catalog, scheduling classes, and scheduling events. During the time that Mr. Ferrell has been employed by Florida A & M University, he has never been disciplined for poor work performance or otherwise. Mr. Ferrell testified that in 2012 or 2013, Dr. Onwunli promised him and Mr. Jordan a $5,000 raise. Dr. Onwunli denied she made the promise. The undersigned finds Mr. Ferrell more persuasive on that fact. Regarding Mr. Witherspoon, he is currently classified as a registration coordinator. His job responsibilities include supervising three employees, transferring credits, and project management. The coordinator position was advertised on May 20, 2016. Mr. Witherspoon applied for the position and was hired. Mr. Ferrell did not apply for the coordinator position. Similar to Mr. Ferrell, Mr. McGlockton is classified as a registrar officer. His job responsibilities include processing enrollment verifications and maintaining the electronic online catalog. Mr. McGlockton has website experience and successfully completed training for managing the electronic catalog system in 2015. Ms. Smith is also classified as a registrar officer. Her job responsibilities include processing test credits, maintaining the Ad Astra system, and assisting with the academic advisement module. On February 16, 2017, the registrar officer position was advertised. Ms. Smith applied for and was hired for the position. However, Mr. Ferrell did not apply for the position posted in February 2017. At hearing, Mr. Ferrell acknowledged that he did not apply for the coordinator or the registrar officer positions. He explained that he did not believe he was qualified for the coordinator position because he does not possess a master’s degree. However, despite not having a master’s degree, the position qualifications included “a bachelor’s degree in an appropriate area of specialization and two years of progressive experience in an academic environment.” Regarding the registrar officer position, understandably, he testified that he did not apply because his position carried the same title. There was no evidence offered at the hearing to demonstrate that Mr. Ferrell did not meet the qualifications for the advertised positions. Dr. Agatha Onwunli is the University Registrar at Florida A & M University. She supervises 20 employees, including Mr. Ferrell. Her job responsibilities include making hiring and promotion decisions, and training employees who work in the registrar’s office. As described supra in these findings of fact, several registrar officers perform different tasks and she makes hiring decisions based on the needs of the office. Mr. Ferrell alleges Florida A & M University unlawfully discriminated against him on the basis of age. The crux of this case rests with the age of the other employees that are relied upon for comparison. Mr. Ferrell offered testimony regarding Mr. Jordan, Mr. Witherspoon, Mr. McGlockton, and Ms. Smith to prove a similarly situated employee outside his protected class, based on age, was treated more favorably than he was treated. Mr. Ferrell testified that the employees could not be his age for various reasons. However, there was no evidence presented at hearing regarding the age of the four employees offered as comparators. In his PRO, Mr. Ferrell attached exhibits that reflect the age of Mr. Jordan, Mr. Witherspoon, and Ms. Smith. However, the exhibits were not offered during the hearing and as a result, they are not evidence of record. A finding of fact may only be based exclusively on evidence of record.1/ Thus, the undersigned may not consider the exhibits offered post-hearing to make a finding of fact regarding the age of Mr. Jordan, Mr. Witherspoon, and Ms. Smith. The undersigned finds that there was not sufficient evidence presented at the final hearing regarding the age of Mr. Jordan, Mr. Witherspoon, Mr. McGlockton, and Ms. Smith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 5th day of April, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 5th day of April, 2018.
