Findings Of Fact Petitioner was employed for 22 years at G. Pierce Wood Memorial Hospital (GPWMH) as a human services worker I. She was a permanent career service employee. It is undisputed that Petitioner failed to report to work or to seek approval for leave after March 5, 1987. A notice was sent to Petitioner on or about April 14, 1987 by M. H. Townsend, Personnel Manager at GPWMH, informing her that an employee who is absent without authorized leave for three consecutive work days is deemed to have abandoned her position. On April 16, 1987 Petitioner signed a return receipt acknowledging receipt of this notice. She continued to be absent from her position without authorized leave and was notified on April 27, 1987 that she was deemed to have abandoned her position. Petitioner was therefore separated from her position with GPWMH. Petitioner offered no evidence to explain her unauthorized absence from March 5, 1987 to her separation on April 27, 1987. She testified she was not physically able to work, but did not support this testimony with any medical evidence. To the contrary, medical records introduced on behalf of Respondent indicate Petitioner was examined and determined to be able to return to light duty work in February, 1987. Respondent had thereafter assigned Petitioner to a light duty program consistent with her medical evaluation.
Recommendation The final hearing in this case was held on August 6, 1987, in Arcadia, Florida before Donald D. Conn, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Marjorie R. Miller, pro se 1002 Rainbow Avenue Arcadia, Florida 33221 Respondent: George Oujevolk, Esquire Post Office Box 129 Arcadia, Florida 33221 The issue in this case is whether Marjorie R. Miller (Petitioner) abandoned her position at G. Pierce Wood Memorial Hospital by being absent without authorized leave for three consecutive work days. Petitioner has requested the Department of Administration to review the facts of this case and to issue a ruling as to whether the circumstances constitute an abandonment of her position. At the hearings Petitioner testified on her own behalf and also called Georgia Edwards and May Robinson. Respondent called M. H. Townsend, Louise Bell, Denise Wood, and Ellen Walters. Respondent introduced eight exhibits. No transcript or proposed findings of fact have been filed.
The Issue The issue is whether Petitioner's Charge of Discrimination (Complaint) was timely filed, so that his allegations of discrimination can be investigated.
Findings Of Fact Petitioner is a Chinese national and was hired by USF in 1994 as an assistant professor in the Department of Government and International Affairs. USF is a state university. In 2002, Petitioner was promoted to an associate professor at USF. On an undisclosed date, he was given tenure. Petitioner's duties included teaching, research, publication, and service to the community. He also supervised graduate students in the preparation of a thesis for their studies. In 2010, Petitioner was suspended for one year. For violating the terms and conditions of his first suspension, on May 23, 2013, USF issued Petitioner a Notice of Suspension (Notice) informing him that he was suspended a second time, for two years without pay, from June 3, 2013, to August 6, 2015. This meant he had no regular Department, College, or University responsibilities for which he was needed, and he was not expected to be on campus during the suspension. Also, he had no teaching or work assignments during this period of time. Among other things, the Notice advised Petitioner that no employer contributions towards his benefits, including health insurance, would be made by USF during the two-year period. However, the Notice provided Petitioner with the name, email address, and telephone number of a University contact person to coordinate his benefits while he was suspended. During his suspension, Petitioner returned to China a number of times. On May 24, 2013, Petitioner sent an email to Dr. Dwayne Smith, Senior Vice Provost & Dean of the Office of Graduate Studies at USF, acknowledging his receipt of the Notice and calling his suspension a "racially discriminative and vindictive action." He further advised Dr. Smith that he would "make an open response to the whole university" and file a grievance regarding the suspension. On June 21, 2013, Petitioner filed an internal grievance regarding his suspension pursuant to the Collective Bargaining Agreement between USF and United Faculty of Florida (Union). On January 2, 2014, Petitioner filed a Notice of Arbitration with USF's Office of the Provost, indicating his intent to arbitrate the matter. However, the Union subsequently declined to proceed with arbitration, no arbitration was scheduled or conducted, and the grievance was withdrawn. Petitioner agrees that USF did not prevent him from arbitrating the dispute. On May 4, 2015, or a few months before his suspension ended, Petitioner filed his Complaint with the EEOC. The Complaint was later referred to the FCHR and was date-stamped on January 25, 2016. It alleged race and national origin discrimination and retaliation. Whether there is a workshare agreement between the two agencies that allows the EEOC complaint to operate as a dual filing with the FCHR, with the same filing date, is not of record. In any event, for purposes of this Recommended Order, it makes no difference whether the filing date is May 4, 2015, or January 25, 2016. The allegations in the Complaint were investigated by an FCHR investigator. Among other things, she conducted a 90-minute, unrecorded telephonic interview with Petitioner in April 2016 and reviewed his responses to a questionnaire. Although Petitioner contended at hearing that he raised additional allegations during the telephone interview, there is no credible evidence to support this claim. The investigator also spoke with persons at USF and received USF's written reply to the charges. After the review was completed, the FCHR determined the most recent allegation of discipline occurred on May 23, 2013, the Complaint was untimely, and it had no jurisdiction to investigate the charges. Other than the suspension, the Complaint does not identify any other discrete acts of discrimination or retaliation during the 365 days preceding the date of filing the Complaint. The deadline for filing a complaint regarding the suspension expired in May 2014. Petitioner did not seek to amend his Complaint to add new charges before the FCHR began its investigation. At hearing, however, he testified regarding a number of grievances, including a less-than-satisfactory evaluation received for the fall semester 2015; difficulty in arranging premium payments on his health insurance and changing coverage from family to single while he was suspended; unfair student evaluations he received for two courses he taught in the fall of 2015; and his inability to supervise a graduate student's literature review in the fall of 2015. All of these events occurred long after he was suspended, involved different actors and types of conduct, were dissimilar from each other, and should have been raised by timely amending his Complaint or by filing a new complaint with the FCHR. Petitioner offered no proof that he was misled or lulled into inaction by USF or FCHR. Rather, Petitioner explained that he waited to file his Complaint with the EEOC until after the grievance was resolved, and he had not yet retained an attorney to represent him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief as untimely filed. DONE AND ENTERED this 21st day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of February, 2017. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Richard F. Meyers, Esquire The Meyers Firm, P.A. Post Office Box 16308 Tampa, Florida 33687-6308 (eServed) Craig S. Dawson, Esquire Office of the General Counsel University of South Florida 4202 East Fowler Avenue, CGS301 Tampa, Florida 33620-9951 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent, Lennox National Account Services (Lennox or Respondent), violated the Florida Civil Rights Act of 1992,1 by discriminating 1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions, which have not substantively changed since the time of the alleged discrimination. against the employment of Matthew P. Mathews (Petitioner) because of his disability, or in retaliation for his engagement in protected activities.
Findings Of Fact Lennox sells, installs, recycles, and maintains commercial heating, ventilation, and air-conditioning equipment for large, national companies. Lennox’s services are performed by service technicians assigned to branch offices throughout the United States. Petitioner accepted employment with Lennox as a Level II Service Technician on June 10, 2019. Petitioner’s Discrimination Complaint alleges: Complainant (CP), began his employment with Respondent in 06/2019 and holds the position of Level II Tech. CP was subjected to retaliation, different terms and conditions of employment and was held to a different standard because of his disability and Respondent failed to accommodate him. CP sustained a job-related injury on 02/11/2020, CP reported the injury to his Manager Keith Green on 02/12/2020. CP told Keith he needed to see a doctor; Keith pressed CP to do more work. CP told Keith in a loud, clear voice that he needed to see the doctor. CP saw Dr. Bernier and sent Keith a copy of his doctor slip. On 02/24/2020, CP went to Lennox NAS corporate for a week of classroom training and went on tour with all other students. CP met all corporate leadership and they all saw he was injured. Steve Coe (Safety Director) pulled CP from class to a closed-door meeting with Chris and began to yell at him and berate CP about his injury. CP was asked why he didn’t report the injury, but CP told them he did. CP asked Steve Coe to consider his credentials and allow him the opportunity to do other work, CP was dismissed. On 03/04/2020, Respondent retaliated against CP by retrieving the equipment provided to him such as, his work van, company cell phone and he no longer had access to his work email. CP contacted Joanna Amy to inquiry why they had taken away his work equipment and why he no longer had access to his work email. Joanna informed CP it was because he had filed for Workman’s Comp. CP status is currently unknown, he is not considered terminated and he has not resigned but, is not currently working. During his employment with Lennox, Petitioner was assigned to the Panama City Beach Branch, where he reported to Branch Manager Keith Green. Steve Coe was the assigned safety director at the time. As part of his orientation process for employment with Lennox, Petitioner acknowledged receipt of the company handbook (Handbook). The Handbook states that Lennox offers reasonable accommodations to qualified, disabled candidates and employees. The Handbook further states that the accommodation process (including work restrictions) is administered by Lennox’s office of human resources and must be properly documented. Specifically, section 5.9 of the Handbook entitled “Accommodations,” provides: The accommodation process (including ‘light duty,’ work restrictions, etc.), is administered – exclusively – by Human Resources and must be properly documented. If the need for accommodation is not obvious, you will be required to submit medical documentation about your disability and the limitation(s) that you are experiencing. You may also be asked to provide an explanation the workplace barrier(s) that need to be accommodated and a description of the desired accommodation. The forms in question – the ‘Healthcare Provider Information Request Form’ and the ‘Accommodation Request Form,’ respectively – are available from Human Resources and will serve as the basis for your interactive discussions with them. During his active employment, Lennox provided Petitioner with access to a company cell phone, email, and fleet work van solely for work-related purposes. In addition to the Handbook, Petitioner acknowledged receiving the NAS Policy & Procedures Booklet, which included the Company Vehicle Use Requirements and the Fleet Safety Policy. That vehicle policy stated, in relevant part: B. Vehicle Use Understand that you will be assigned a Company vehicle to be used to perform your job responsibilities. You will also be allowed to use the vehicle to travel between home and work (i.e. for commuting) …. You will not … use the vehicle for personal use beyond that which is incidental to your commute to or from work. (emphasis added). In addition to the use of a company vehicle, Petitioner acknowledged the cell phone agreement wherein he agreed that Lennox was providing him with a cell phone for “business use.” Petitioner also acknowledged receipt of the Lennox’s code of business conduct (Code of Conduct). The Code of Conduct includes Lennox’s policy prohibiting discrimination and/or harassment due to a disability or any other status protected by federal, state, and/or local law. The Code of Conduct includes reporting procedures encouraging reporting of alleged discrimination, harassment, or retaliation. Access to information about Lennox’s policies, including the Code of Conduct and reporting procedures, is available to employees online (among other places), and explained through training sessions, new-hire orientation, and company publications and postings. According to Petitioner, on October 24, 2019, while working for Lennox in the Panama City area, he was ordered by Keith Green to pick up a crane pad above his head, and when he did, “he felt something in his knee.” Petitioner allegedly spoke to Mr. Green on the phone when Mr. Green sent him to another job and said to Mr. Green, “Will you please be mindful of your tradesman because my knee is hurting.” Petitioner testified that the phone call became “hostile” and that he ended up talking to Safety Director Steve Coe, who sent Petitioner to Tallahassee for a four-hour ladder training course. There is no documentation indicating that Petitioner reported the alleged knee injury as an on-the-job injury that day. After that, Petitioner allegedly either aggravated his knee injury, or injured his knee again, while using an “unapproved” ladder on February 11, 2020, at the direction of Mr. Green. On February 13, 2020, Petitioner spoke with Lennox’s safety director, Steve Coe, about discomfort with his right knee. When asked by Mr. Coe if he injured his knee at work, Petitioner replied he was going for an MRI and if he needs surgery, he will report the injury as “work-related”; otherwise, he would handle it with his own insurance. Mr. Coe explained to Petitioner that is not an appropriate way of handling the matter and then outlined the process for reporting work-related injuries. Petitioner did not report the injury as work-related to Mr. Coe or his supervisor, Mr. Green, and he subsequently returned to work to attend a training class. Petitioner requested, and was allowed time off work on February 28, 2020, to attend an MRI appointment for his right knee. On March 2, 2020, Petitioner notified Lennox that he was unable to return to work due to his knee injury. On the same day, Petitioner applied for both short-term disability and workers’ compensation. Petitioner’s short-term disability claim was handled by Lennox’s third-party disability administrator, Sedgwick. The short-term disability notification to Lennox from Sedgwick, which also included Petitioner as a recipient, referenced Petitioner’s last day worked as February 27, 2020, and first day of absence as March 2, 2020. The notification further stated that Petitioner would also be evaluated under the Family Medical Leave Act (FMLA) for available coverage. Sedgewick’s March 2, 2020, short-term disability notification also informed Petitioner that he may want to apply for a “reasonable accommodation” in addition to other potential benefits, such as unpaid personal leave of absence. The notification further stated that during its review process, Petitioner’s absences should be treated as pending, with neither approval nor disapproval under Lennox’s attendance policy. Because Petitioner indicated in his short-term disability filing that his knee injury occurred at work, a workers’ compensation claim was initiated with Lennox’s third-party workers’ compensation administrator, ESIS. Because Petitioner was no longer actively working, on March 4, 2020, consistent with company practice and policy, Lennox collected its fleet van that had been issued to Petitioner. Also, since Petitioner had not returned to work or provided a return to work date, Lennox disabled Petitioner’s access to the company email since he was no longer at work. Petitioner claims that he was treated differently than another Lennox service technician, Julian Wiles, who allegedly was permitted to retain access to the company portal while on leave. Petitioner’s evidence of this was the fact that Mr. Wiles was included in company training emails while on leave. Further evidence indicated, however, that simply because Mr. Wiles was included as a recipient on company emails sent to numerous other employees about training requirements, it did not indicate that Mr. Wiles had access to the portal while on approved leave. Rather, the training email evidence submitted by Petitioner was simply reflective of training emails that were sent out in clusters for those who had not completed training. Further, it was shown that, unlike Petitioner, Mr. Wiles was on approved medical leave during the period he was absent because he had provided necessary medical documentation, and then he eventually returned to work. Although Petitioner was removed from Lennox’s portal, at Petitioner’s request, Lennox agreed to allow Petitioner to retain his company-issued cell phone. Petitioner’s short-term disability was denied by Sedgwick on March 9, 2020. Sedgwick’s short-term disability denial letter stated, in part, that Petitioner’s leaves of absence, unless excused by another form of leave or a reasonable accommodation, were unapproved under Lennox’s attendance policy, which is set forth in the Handbook. Specifically, the March 9, 2020, short-term disability denial letter from Sedgwick advised Petitioner: Attendance: The denial of your claim means that the absences in question – unless excused by another form of leave or a reasonable accommodation – are unapproved under your Company Attendance Policy (Appendix C to the Employee Handbook). Excessive Unapproved absences or 3 consecutive work days of No-Call, No-Show will result in discipline, up to and including the termination of your employment. Please talk to your Human Resources Business Partner if you have questions. Reasonable Accommodations: In addition to paid and unpaid leave, your company also offers reasonable accommodations (including additional unpaid time-off) to qualified disabled employees. Reasonable accommodations are managed by Human Resources – not by the LII Disability Leave Service Center. For more information, please refer to the Employee Handbook. To apply for an accommodation, please contact your Human Resources Business Partner at the number listed in Appendix A to the Employee Handbook. (emphasis added). Subsequently, on March 10, 2020, Sedgwick notified Mr. Green and Lennox that Petitioner’s short-term disability benefit claim was denied as of March 2, 2020, due to the worker’s compensation exclusion, and that Petitioner was not eligible for leave under FMLA due to length of service. Because Petitioner did not qualify for leave under FMLA, he was deemed on unapproved absence from Lennox as of March 2, 2020. On May 14, 2020, Lennox’s human resources director, Karen Cerrato, sent Petitioner a letter (the May 14th letter) advising Petitioner that he needed to contact Lennox’s office of human resources by May 19, 2020, to arrange a convenient time to discuss leave options or return to work with or without reasonable accommodations. The May 14th letter made it clear that, if Petitioner wanted to obtain approved leave or reasonable accommodations, he was responsible for making the requests and filling out necessary paperwork. Accommodation paperwork was attached to the May 14th letter, including an “Accommodation Request Form” and a “Health Care Provider Information Form.” The attached accommodation paperwork stated: You are responsible for making sure that HR receives the completed forms and any other information needed to support your accommodation request. In most cases, this will require you to return documentation and/or follow-up with your health care provider to ensure that they are doing their part. On March 18, 2020, Petitioner’s worker’s compensation claim was denied by the Florida Department of Financial Services, Division of Workers’ Compensation, on the basis that “there was no accident as defined by 440.02(1) that resulted in said injury.” On May 19, 2020, Petitioner responded to Ms. Cerrato’s May 14th letter by providing a document from Sedgwick indicating that he was able to return to work on May 3, 2020, without restrictions. The next day, May 20, 2020, Ms. Cerrato sent an email to Petitioner advising that he had not adequately responded to the May 14th letter’s request for his leave options or return to work. The email stated that, not only was the Sedgwick document that Petitioner provided her insufficient to comprise an accommodation request, it rather “provides an unrestricted return to work date of 5/3 (more than 2 weeks ago).” The final paragraph of the email stated: Please call me before 4:00 pm today so we can discuss the option you plan to pursue. If I do not receive your call by 4:00 pm today, I will understand (based on the paperwork you provided) that you have been able to work without restrictions since 5/3 and have elected to resign. In response, that same day, May 20, 2020, Petitioner’s workers’ compensation counsel, Chris Cumberland, sent an email to Ms. Cerrato, but failed to provide a return to work date or clarify whether reasonable accommodations were needed. Rather, Petitioner’s counsel’s email stated in pertinent part: Mr. Mathews is willing to return to work, but as the carrier has not provided an authorized workers compensation physician, he is unaware at this time as to what his work restrictions truly are. He knows personally that he is in a great deal of pain and that he likely has a torn meniscus in his knee which needs to be repaired before he can perform tasks at a full duty level. I would ask that you please discuss this with your counsel and I will advise my client accordingly. Jodie Michalski, counsel for Lennox, responded to Mr. Cumberland via email that same day, May 20, 2020, noting Petitioner’s unapproved absence status since early March because of his previously denied short-term disability, workers’ compensation, and FMLA claims, and suggesting the option of applying for a reasonable accommodation under the Americans with Disabilities Act (ADA). Ms. Michalski’s email also advised Petitioner’s counsel that Lennox was willing to grant a reasonable period for additional unpaid leave so that Petitioner could complete the necessary paperwork. Ms. Michalski’s email posed the following questions: Is your client interested in pursuing an accommodation (including additional, unpaid time off)? If so, can he commit to providing the completed paperwork to Human Resources within 15 calendar days, which we consider a reasonable amount of time? The last sentence of Ms. Michalski’s email stated: “I look forward to your response by 4:00 p.m. Alternatively, your client can reach out to Karen Cerrato directly with his response.” When neither Mr. Cumberland nor Petitioner timely responded to Ms. Michalski’s May 20th email to Petitioner’s counsel, on May 26, 2020, Ms. Cerrato emailed Petitioner and advised him that, in the absence of an appropriate response, Lennox would conclude there was no interest in a reasonable accommodation and would process Petitioner’s separation of employment after 4:00 p.m. on May 27, 2020. At the time, Petitioner had received approximately 84 days of unapproved absence and was advised that if he would like to pursue a reasonable accommodation, including additional unpaid leave, that he must contact Ms. Cerrato immediately. On May 27, 2020, after the 4:00 p.m. deadline, instead of responding directly to Ms. Cerrato’s requests for clarification, Petitioner sent three separate emails to Ms. Cerrato indicating that he was willing to work within the restrictions from his doctor (which were not provided), referring to the disability statement previously provided (the one stating that he could return to work May 3rd), and advising that he had an upcoming doctor visit. Petitioner’s correspondence failed to provide the requested accommodation paperwork and, instead, alleged, “To this point, your demands have been impossible because Lennox has prevented me from various resources.” Ms. Cerrato responded to Petitioner by email that same day, again requesting that he engage in good faith with Lennox, address the questions previously directed to him, provide any restrictions from his doctor, and complete the accommodation paperwork, including the Employee Accommodation Request Form and Health Care Provider Information Form. Ms. Cerrato’s email gave Petitioner more time, until May 28, 2020, to provide the previously requested information and necessary paperwork. She also advised Petitioner that if he failed to provide the information and paperwork by June 12, 2020, it would be assumed that Petitioner was cleared to return to work without restrictions but that he had chosen not to return to employment with Lennox. Petitioner responded with another email later that same day, May 27th, promising to submit the accommodation paperwork following his doctor’s appointment scheduled for May 28, 2020. In his email, Petitioner also made complaints directed against Mr. Green and Mr. Coe regarding Petitioner’s alleged injury and alleging discrimination. Ms. Cerrato contacted Petitioner via email the next morning, May 28, 2020, stating, in part, that she looked forward to receiving the completed paperwork and engaging in the interactive process. In her email, Ms. Cerrato also advised Petitioner that his complaint against Ms. Cerrato, Mr. Green, and others for discrimination, harassment, and bullying, had been investigated and that the allegations were not substantiated. Petitioner responded to Ms. Cerrato via email later that day, May 28th, advising that his doctor’s appointment had been rescheduled for May 29th, suggesting that Ms. Cerrato was unwilling to fairly address issues he had reported to her, suggesting that she had made an “offer” and requesting arbitration. Ms. Cerrato responded by email the next day stating: I am happy to grant you an additional day to submit your accommodation paperwork. In the meantime, please clarify the following two points: You reference my “offer’. What offer did I make? You reference “arbitration” several times. Please explain what you mean. I look forward to receiving your paperwork today. Petitioner did not provide the paperwork or respond. On June 5, 2020, Ms. Cerrato sent an email to Petitioner stating: I understood from your May 28, 2020 email that you would be sending me your accommodation request and supporting medical documentation on May 29 after your doctor’s appointment. Another week has passed, but we have not received anything further from you (e.g. your request form, medical support, a request for more time, or a response to the questions I asked on May 28). We must concluded [sic], therefore, that you will not be pursuing an accommodation or returning to work. As such, we have processed your separation, effective today. If you feel there has been an error (e.g. if I missed an email from you), please let me know. If I do not hear from you, we wish you well in your future endeavors. Petitioner failed to respond. Petitioner was never considered by Lennox to be disabled, never properly requested accommodations, and failed to prove that he had a work-related injury. Petitioner never provided required paperwork, did not clarify any workplace restrictions, never requested more time before returning to work, and never advised whether he even intended to return to work. Petitioner’s workers’ compensation claim was denied, and the evidence submitted in this case was insufficient to prove Petitioner’s claims of discrimination or retaliation.
Conclusions For Petitioner: Matthew P. Mathews, pro se Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 For Respondent: Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast Second Avenue Miami, Florida 33131
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 terms of this Recommended Order. DONE AND ENTERED this 22nd day of June 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2021. Matthew Mathews Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Stefanie Mederos, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Laura Dietrich, Esquire Littler Mendelson, P.C. Suite 1500, Lock Box 116 2001 Ross Avenue Dallas, Texas 75201
The Issue Whether Respondent discriminated against Petitioners on the basis of their race in violation of Chapter 760, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Respondent, "Travelodge," is a Florida corporation: Canterbury Oak, Inc., d/b/a Travelodge. It is a public lodging establishment. Petitioners, Louis and Constance Taylor, are an African-American husband and wife and are members of a protected class. In the early afternoon, Sunday, July 16, 2007, Petitioners and their children arrived in Clearwater Beach and attempted to register and obtain a room at the Travelodge for two nights. They did not have reservations. On that particular weekend, there was a youth soccer tournament in Clearwater Beach, and the Travelodge had all rooms occupied on Saturday, July 15, 2007, with 44 of the 54 rooms being vacated the morning of July 16, 2007. Typical check-out time is 11:00 a.m.; extra housekeeping staff had been hired to prepare the rooms for Sunday occupancy. The fact that Sunday morning "check-outs" were largely youth soccer participants made the room clean-up and preparation particularly time consuming. Guests, without reservations, arriving in the early afternoon were told that no rooms would be available until after 3:00 p.m. Petitioner Louis Taylor, who actually entered the Travelodge lobby and requested accommodations (Petitioner Constance Taylor remained in the car with their children), testified that the desk clerk (Craig Harmul) was on the telephone when Petitioner asked if a room was available for two nights. Petitioner testified that the desk clerk said "no." Petitioner Louis Taylor decided not to "push the issue" and returned to the car. Petitioners then checked into another local motel. Petitioners had stayed at the Travelodge on several previous occasions; it was their favorite motel in Clearwater Beach, and they and their children were disappointed. Petitioner Constance Taylor then called the "1-800 national reservations service" for Travelodge and was advised that rooms were available. Later that day she called Kathy Mittler, Respondent's general manager, and suggested that they had been denied accommodations because of their race. Ms. Mittler explained that everyone was told that they would have to wait until 3:00 p.m., and advised that rooms were available and that Petitioners could come and get a room.
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 both Petitions for Relief. DONE AND ENTERED this 15th day of November, 2007, 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 15th day of November, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Martin R. Cole Travelodge 401 Gulfview Boulevard Clearwater Beach, Florida 33767 Louis Taylor 5368 Aeolus Way Orlando, Florida 32808 Constance Taylor 5368 Aeolus Way Orlando, Florida 32808
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 Whether Petitioner was subject to an unlawful employment practice by Respondent, Pacifica Senior Living Woodmont, on account of Petitioner’s age or race, in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a 41-year-old African-American female who was at all times relevant hereto an employee of Pacifica Senior Living Woodmont. Petitioner was 40 years old at the time the alleged discriminatory act occurred. Respondent, Pacifica Senior Living Woodmont (Respondent or Woodmont), is a 98-bed assisted living facility located in Tallahassee, Florida. Petitioner was employed by Woodmont from June 22, 1996, until February 28, 2014, when her position as Interim Weekday Receptionist was eliminated. By all accounts, Petitioner was a dedicated, reliable, loyal, and hard-working employee. Petitioner was recognized as Employee of the Month in August 2004, and January 2006. Petitioner began her employment with Woodmont as a Dietary Server in the Dining Services Department. At various times during her employment, Petitioner also worked PRN (i.e., “as needed”) as the front-desk receptionist. The “as needed” basis brought Petitioner in to work reception occasionally in the evenings and on weekends. Other employees who worked reception PRN included Pamela Strange, a 48-year-old African-American female, and Barbara Youngblood, a 58-year-old white female. In June or July 2013, Woodmont initiated a significant renovation of the facility, adding a memory-care wing, two additional dining rooms, and a new security system. The renovations were completed approximately one year later. In October 2013, Woodmont’s full-time weekday receptionist, Allison Clark, suffered a severe physical injury and was on medical leave through late December 2013. During Ms. Clark’s absence, Petitioner, Ms. Strange, and Ms. Youngblood alternately performed the weekday, as well as weekend and evening, receptionist duties. Ms. Clark briefly returned to Woodmont in December 2013. Ms. Clark was terminated effective January 30, 2014. Emily Bearden was the Business Office Coordinator for Woodmont from January 2013 through May 2015. Ms. Bearden’s duties included accounts payable and receivable, payroll, and onsite Human Resources, as well as managing the front-desk team. On January 30, 2014, the date Ms. Clark was terminated, Ms. Bearden offered Petitioner the position of Interim Weekday Receptionist. Petitioner accepted the position. On January 30, 2014, Petitioner was removed from the Dietary schedule with Dining Services and began as Interim Weekday Receptionist. Her regular work hours were from 8:00 a.m. to 4:30 p.m. During her term as Interim Weekday Receptionist, Petitioner occasionally worked shifts for Dining Services. Those shifts were taken prior to 8:00 a.m. and after 4:30 p.m. Ms. Bearden reclassified the weekday receptionist position to that of Receptionist/HR marketing assistant. Ms. Bearden explained to Petitioner the duties of the new position, which would include assisting the marketer on development of brochures and handouts, making time-clock adjustments for employees who missed clocking in or out, and other duties with various departments. The position would require basic knowledge of the Excel spreadsheet program and use of Outlook for email with other departments. Petitioner did not immediately dismiss the idea of moving into the proposed position, but expressed concerns with the computer skills which would be required. Ms. Bearden offered to personally provide some training to Petitioner, and indicated that Woodmont could provide additional training through a third party. When Woodmont advertised the position of Receptionist/HR marketing assistant, Petitioner did not apply. In March 2014, Woodmont hired Laurie Love, a 45-year-old white female, as Receptionist/HR marketing assistant. Upon completion of the facility renovations, Woodmont made budget adjustments in order to staff the new memory care wing. Woodmont eliminated a full-time dishwasher position in Dining Services, reduced the full-time Activities Director position to part time, and eliminated the part-time evening receptionist position. The facility renovations included a new security feature for the front door, allowing after-hours’ visitors (i.e., between 5:00 p.m. and 7:30 p.m.) to be “buzzed in.” This feature eliminated the need for the part-time evening receptionist at Woodmont. On February 6, 2014, Ms. Bearden met with Petitioner regarding options for continued employment with Woodmont following conclusion of her stint as Interim Weekday Receptionist, and elimination of the part-time evening receptionist position. Ms. Bearden offered Petitioner a position in housekeeping, as well as a position transporting residents to and from medical appointments in the facility vehicle. Ms. Bearden also informed Petitioner that Dining Services was hiring to fill positions for the two new dining rooms. Petitioner responded that she was only interested in evening reception. Joyce Latimer is an employee of Senior Management Advisors, the company which manages Woodmont. Ms. Latimer became Assistant Director of Operations at Woodmont in October 2013. On February 14, 2014, Ms. Latimer called Petitioner into her office to notify her that her position had been eliminated, and deliver a termination letter with detailed information. Ms. Bearden was also present at the meeting. Ms. Latimer testified, credibly, that Petitioner did not seem to understand the ramifications of the facility reorganization. Ms. Latimer explained, more than once, the elimination of the part-time receptionist position, and opportunities for continued employment at Woodmont. The meeting lasted 40 to 45 minutes, much longer than similar meetings with other affected employees. During the meeting, Petitioner insisted that she wanted to stay in her current position. Ms. Strange and Ms. Youngblood were likewise affected by Woodmont’s restructuring and elimination of the part-time receptionist position. Ms. Strange accepted the position of full- time weekend receptionist. Ms. Youngblood declined any alternate position and was separated from employment at Woodmont. Ms. Latimer’s concern for Petitioner was genuine. She wanted to ensure that Petitioner understood she was not being terminated for poor job performance. Ms. Latimer offered to allow Petitioner to take time off to look for other employment, to write letters of recommendation on Petitioner’s behalf, and to otherwise support Petitioner, should Petitioner decide not to remain at Woodmont. Further, during the meeting, Ms. Latimer offered Petitioner the opportunity to return to a position in Dietary Services. On February 28, 2014, Woodmont hosted a going-away party for Petitioner at the facility. Petitioner made some comments to the assembled employees which led Ms. Latimer to believe Petitioner was upset. Ms. Latimer spoke privately with Petitioner during the party to address Petitioner’s concerns. Ms. Latimer again explained the restructuring and elimination of positions. Ms. Latimer reiterated opportunities for continued employment with Woodmont. Petitioner maintained throughout the proceeding that she was never offered continued employment at Woodmont, and that she repeatedly requested to return to her position as a Dietary Server, but was not allowed to do so. In arriving at the findings herein, the undersigned has carefully considered the demeanor and the testimony of the witnesses. Ms. Latimer’s and Ms. Bearden’s testimony is accepted as both credible and persuasive on this point. Following her last day of employment, February 28, 2014, Petitioner did not apply for any other position with Woodmont, nor did Petitioner request a letter of recommendation from Ms. Latimer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Pacifica Senior Living Woodmont, did not commit any unlawful employment practice as to Petitioner, Jacqueline Ash, and dismissing the Petition for Relief filed in FCHR No. 2014-00515. DONE AND ENTERED this 13th day of August, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 13th day of August, 2015.
The Issue Whether Petitioner, Barbara Robinson, was subject to an unlawful employment practice by Respondent, Attractions Lodging Leisure, Inc., d/b/a All Guest Services, in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner requested this evidentiary hearing to prove her allegation that All Guest discriminated against her based on her age, national origin, and race. At the final hearing, Petitioner described herself as “a black Jamaican female over the age of forty.”4/ All Guest operates a tourism business in Orlando, Florida. Its business consists of placing sales representatives, or “concierges,” in hotel lobbies throughout the Orlando area. These concierges assist hotel guests by promoting and selling theme park tickets, answering questions about local attractions, and generally helping the guests feel happy about their stay. All Guest currently employs over 150 concierges in 75 hotels across Orlando. All Guest hired Petitioner as a concierge in October 2012. All Guest assigned Petitioner to work in a specific hotel. Petitioner was 48 years old at the time All Guest hired her. Petitioner worked for All Guest from October 2012 until May 2018. By all accounts, Petitioner was a dependable worker with no noted deficiencies in her job performance. Testimony at the final hearing established that Petitioner was qualified to perform her duties as a concierge, and All Guest was pleased with her work. Petitioner remained in the position of concierge during her five years with All Guest. Beginning as early as 2013, however, Petitioner became increasingly disenchanted by what she perceived to be All Guest’s preferential treatment of younger, white employees. At the final hearing, Petitioner recounted how she desired, but was not considered or selected for, several promotion opportunities. She complained that All Guest was promoting younger individuals who were not more qualified that herself. To support her claim that All Guest (unlawfully) failed to promote her, Petitioner described the following incidents: All Guest promoted Schuyler McVicker to a Team Lead position within six months of his hiring, instead of offering the position to Petitioner. Mr. McVicker is a white male who is younger than Petitioner. All Guest promoted Jenn Janasiewicz to a Team Lead position for which Petitioner was not considered. Ms. Janasiewicz is a white female who is younger than Petitioner. In the summer of 2017, All Guest filled a Concierge Sales Manager position. Petitioner complained that All Guest did not approach her about applying for the opening. Petitioner also identified a position that All Guest filled with Andrea Romero. Like Petitioner, Ms. Romero is over the age of forty. However, she is approximately six years younger than Petitioner. Petitioner asserted that she gave All Guest a lot to be happy about. Ticket sales consistently increased through her efforts. All Guest, however, never approached her about a promotion. Petitioner felt ignored, overlooked, and under- appreciated by All Guest’s failure to acknowledge her strong work ethic, as well as her contributions to its business. Petitioner declared that she deserved advancement based on her performance. Further, Petitioner never received a raise during her time with All Guest. Petitioner claimed that those individuals who All Guest promoted received higher wages than she did. (At the final hearing, no proof was offered establishing the actual amount of the other employees’ pay.) As Petitioner became increasingly demoralized by her stagnant job status and low pay, in the latter part of 2016, she began looking for other employment. Ultimately, on May 28, 2018, Petitioner resigned from All Guest to accept a job that offered better financial opportunities. Armando Vazquez, All Guest’s current General Manager, testified at the final hearing. Initially, Mr. Vazquez commented that Petitioner was a quality employee and a good concierge. Mr. Vazquez remarked that Petitioner did a great job working with her customers. Mr. Vazquez explained that Petitioner’s position as concierge afforded her three avenues for “promotion.” First, Petitioner could transfer to a larger hotel with more guests to whom she could market and sell park tickets (thus receiving larger commission payments). Second, Petitioner could be promoted to a Team Lead position. Third, Petitioner could advance into a management position. Mr. Vazquez explained that in All Guest’s business structure, a Team Lead essentially handles day-to-day operations. A manager, on the other hand, is involved in issues of greater complexity, including business strategy and planning. All Guest employs more Team Leads than managers. Therefore, Team Lead positions become available more frequently than managerial positions. Despite the fact that All Guest was pleased with Petitioner’s performance, Mr. Vazquez testified that All Guest did not consider Petitioner for promotion opportunities for several reasons. First, during her five years with the company, Petitioner never expressed to anyone at All Guest, including Mr. Vazquez, that she was interested in a promotion. Therefore, All Guest was not reasonably aware that Petitioner desired to advance beyond her concierge job. Mr. Vazquez elaborated that during Petitioner’s employment, All Guest did not routinely post or publish specific promotion opportunities, except on one occasion. In June 2017, Mr. Vazquez sent out an e-mail to company employees announcing an open managerial position and articulated that, “If you are interested . . . please contact me immediately.” Petitioner did not apply for the position. Neither did she communicate her interest in the opening with anyone in All Guest management. As a result, All Guest did not consider her for the managerial position.5/ Secondly, All Guest was concerned with the manner in which Petitioner interacted with her coworkers, Team Leads, and managers. Mr. Vazquez expressed that Petitioner was not a “team player.” He testified that, on occasion, Petitioner’s treatment of her coworkers was disrespectful and insubordinate. Mr. Vazquez further relayed that Petitioner did not take criticism well. At the final hearing, Mr. Vazquez described several instances when All Guest felt that Petitioner’s conduct was less than satisfactory, including: November 10, 2014: Petitioner’s e-mail exchange with management. Mr. Vazquez pointed to Petitioner’s confrontational and impertinent tone. September 27 and 28, 2016: Petitioner’s e-mail communication with Team Lead Ricardo Bazan. Petitioner’s comments prompted Mr. Bazan to write, “I find your email to be rude and disrespectful.” October 13, 2016: Petitioner’s e-mails to Mr. Vazquez and Rick Schiebel (Director of Sales) regarding Petitioner’s request for time off. Petitioner’s e-mails caused Mr. Schiebel to reply, “Why do you have to be so negative and nasty to our team, including me?” and “I expect you to treat all managers and leads with dignity and respect.” October 18, 2017: Petitioner e-mailed Mr. Vazquez demanding that her manager must have “a valid REASON to come to [her] site to discuss any work related information, it is unacceptable for him to tell me he will be sitting down in my work site space to work on his laptop.” November 19, 2017: Through e-mail, Concierge Manager Andrea Romero reported a conversation with Petitioner in which Petitioner exclaimed that Mr. Vazquez “should go to management classes because he does not know how to run this company.” Finally, Mr. Vazquez asserted that Petitioner had issues with tardiness, as well as refused to commit to working at least one evening shift a week. (At the final hearing, Petitioner conceded that she was occasionally late for work. But, she adamantly denied that she had any pattern of tardiness, or ever failed to show up at all. All Guest did not refute Petitioner’s claim that All Guest never imposed or recorded any formal discipline on Petitioner for these alleged deficiencies in her work performance.) Based on the above reasons, Mr. Vazquez maintained that All Guest was neither inclined nor motivated to extemporaneously promote Petitioner to a higher position during the time she worked with the company. Regarding Petitioner’s complaints that younger coworkers were promoted instead of her, Mr. Vazquez offered several justifications. Mr. Vazquez explained that All Guest selected Mr. McVicker for a Team Lead position because his training matched All Guest’s business needs. Specifically, Mr. McVicker knew how to process transactions from the travel website Expedia, which distinguished him from Petitioner and others. Further, Mr. McVicker was a supervisor at his prior employment which qualified him to assume a part-time manager position with All Guest. Similarly, All Guest promoted Ms. Janasiewicz because her skill set matched All Guest’s business needs in a way that Petitioner’s did not. Finally, Mr. Vazquez explained that Ms. Romero had previously worked with All Guest for a considerable length of time, then resigned. When Ms. Romero subsequently expressed interest in returning to the company, All Guest believed that she was an excellent candidate for a managerial position given her prior experience and skills. Mr. Vazquez argued that Petitioner left All Guest on her own accord (for a better job opportunity), not because All Guest forced her to resign. Mr. Vazquez relayed that, prior to Petitioner leaving All Guest, he received a telephone call from a prospective employer in the hospitality industry who requested an employment reference. Mr. Vazquez testified that he provided Petitioner a positive reference. Mr. Vazquez denied that All Guest made any promotion decisions or refused to consider Petitioner’s advancement in the company, based on her age, race, or national origin. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that All Guest discriminated against Petitioner based on her age, race, or national origin. Accordingly, Petitioner failed to meet her burden of proving that All Guest committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Barbara Robinson, did not prove that Respondent, All Guest, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2019.
The Issue At issue in this proceeding is whether Petitioner overpaid Respondent in the amount of $14,190.41 for the pay periods between July 10, 2009, and October 15, 2009, and, if so, whether Respondent should be required to reimburse Petitioner for those overpayments.
Findings Of Fact On October 16, 2008, Respondent signed an employment contract with FAMU to act as the coordinator of statistical research for the "Teachers for a New Era" ("TNE") initiative, a project funded at FAMU and other universities by a grant from the Carnegie Corporation of New York. Dr. Gwendolyn Trotter is the director of the Carnegie-funded portion of the TNE initiative at FAMU. The contract signed by Respondent was an "Administrative and Professional (A&P) Employment Contract." The contract stated as follows, in relevant part: This employment contract between Florida A&M University (FAMU) Board of Trustees and the below-named employee is subject to the Constitution and Laws of the State of Florida as constitutionally permissible, and the regulations, policies, and procedures of the Board of Governors and Florida A&M University Board of Trustees (BOT), as now existing or hereafter promulgated... An employee's contract may be non-renewed and/or the employee may be separated from employment as set forth in University Regulation 10.106, regardless of the above appointment dates. Employment will cease on the date indicated, and no further notice of cessation of employment is required for the following categories of employees: (1) employees holding visiting appointments; (2) those appointed for less than one academic year; or (3) those who are paid from contracts, grants, auxiliaries, or local funds. The appointment dates set forth in Respondent's employment contract were October 10, 2008, through June 30, 2009. The contract stated that Respondent would be paid at an "annual salary rate" of $55,000. The contract further stated that the amount to be paid to Respondent during his appointment period would be $39,615.00, and that Respondent's bi-weekly salary would be $2,107.27. Respondent was an employee "paid from . . . grants" for purposes of the cessation of employment paragraph of the employment contract, as set forth in the third inset paragraph of Finding of Fact 2, supra. Under the heading "Appointment Status," the employment contract stated, "Regular." FAMU Regulation 10.106 provides, in relevant part: The President or President's designee may choose not to renew the employment of Administrative and Professional (A&P) employees, including the Executive Service. The notice of non-reappointment or intention not to reappoint an A&P employee shall be in writing. On or before March 1st of each contract year, the President or President's designee shall notify any employee who will be non-reappointed. * * * A&P employees who are appointed to established positions with an appointment status modifier or type, other than Regular (for example, Acting, Temporary or Visiting) are not entitled to a notice of non- reappointment. A&P employees who are issued an employment contract with a clause providing that employment will cease on the date indicated and further notice is not required, are not entitled to the notice of non-reappointment referenced in this regulation.1/ FAMU Regulation 3.019, relating to delinquent accounts, provides in relevant part that FAMU "shall use due diligence and make every effort in the collection of all accounts owed to the University by employees, students, vendors and other parties." FAMU Board of Trustees Policy 2005-19 provides that FAMU will seek reimbursement for salary overpayments. Respondent testified that when he was hired for the coordinator of statistical research position, Dr. Trotter told him that the TNE project would last for two years, but that his initial employment period would be for one year with a second year contingent upon his initial performance. This testimony was plausible, credible, and not contradicted by any testimony or documentary evidence presented by FAMU. The written A&P employment contract signed by Respondent was not for one year, but for the period from October 10, 2008 through June 30, 2009. Respondent testified that the provost's administrative assistant explained that no contract could extend beyond the end of the current fiscal year on June 30, 2009, and that he would be issued a second contract to cover the period from July 1, 2009, through October 9, 2009. Respondent was never given a second written contract extending beyond June 30, 2009, nor was he ever given written confirmation of the terms that he said were communicated orally to him by Dr. Trotter. FAMU's associate director of payroll, Jacqueline Lester, testified at the hearing and essentially confirmed Respondent's testimony that the university does not issue contracts that extend beyond the current fiscal year. Ms. Lester stated that if an A&P employee such as Respondent is to work beyond the end of the current fiscal year, he will be issued a new contract that covers the carryover portion of his engagement. Ms. Lester further testified that if a new contract is not issued, then the employee is expected to stop work at the end of the current fiscal year. Respondent testified that he and Dr. Trotter found themselves at odds over research protocols, and that this disagreement completely fouled their professional relationship. Respondent stated that Dr. Trotter thereafter set out to humiliate and intimidate him, and to isolate him professionally from the other members of the TNE initiative. As the end of the fiscal year approached in June 2009, Respondent noticed that his fellow employees were receiving new contracts for the upcoming fiscal year. On June 29, 2009, Respondent sent an e-mail to Dr. Trotter inquiring as to the status of his contract. Dr. Trotter responded on the same date with an e-mail informing Respondent that TNE would "take on an extremely targeted direction for the coming year." The e-mail went on to state the following: I am in the process of working through contracts starting July 1, 2009. Your contract does end on June 30, 2009. Your 2008-2009 contracted pay was based on a 12-month pay scale. However, your contract started in September 2008, and ends June 30, 2009. I am working with Mr. Herbert Bailey in Academic Affairs to conclude contracts ending on June 30, 2009. Dr. Trotter's e-mail twice stated that Respondent's contract would end on June 30, 2009, but also stated that she was "working through" contracts that would start on July 1, 2009, leaving open, in Respondent's mind, the possibility that his was one of the new contracts still being processed. Dr. Trotter did not unequivocally state that Respondent's services would no longer be required on the TNE initiative after June 30, 2009. On the morning of July 6, 2009, Respondent sent the following e-mail to Dr. Trotter: I am following up on the email I sent you regarding my contract. I received a reply from you stating that you were working on contracts ending June 30, 2009. I continue to come to work under the 12-month contractual agreement since October 10, 2008. I am therefore requesting definitive information about the status of my contract. Telephone discussions and further e-mail exchanges occurred between Respondent and Dr. Trotter over the course of the next two days. Respondent continued to insist that he had a 12-month contractual agreement, and attributed the misunderstanding to the fact that FAMU never issued an official letter of employment that explained the terms under which he had been hired. Finally, on the afternoon of July 8, 2009, Dr. Trotter sent the following e-mail to Respondent: As noted in an earlier e-mail your contract did end on June 30, 2009. You will be compensated for the days worked beyond June 30, 2009. You should not continue to work beyond tomorrow. Thanks for working with Teachers for a New Era. July 9, 2009, was the last day that Respondent worked pursuant to his A&P employment contract. Respondent was paid by FAMU pursuant to his A&P employment contract for all days worked through July 9, 2009. Due to an error on the part of FAMU, Respondent continued to receive regular bi-weekly gross pay of $2,107.28 from FAMU through the pay period ending October 18, 2009. At the hearing, Respondent conceded that he received these payments despite the fact that he had stopped working for FAMU as the TNE coordinator for statistical research on July 9, 2009. Respondent testified that he believed the university was paying him for the remainder of his one-year contract. On June 30, 2009, Respondent accepted an Other Personal Services ("OPS") appointment to work as an adjunct instructor in the FAMU Department of Economics. The OPS appointment was to teach one economics class per week. Respondent was to be paid $25.00 per hour, five hours per week, for a biweekly gross pay of $250.00. The appointment was for the sixteen-week fall semester, from August 24, 2009, through December 11, 2009, with Respondent receiving total gross pay of $2,000.00 for the period. However, Respondent worked in the OPS position for only one week before starting a full-time faculty position at Savannah State University in Georgia on September 11, 2009. Respondent was correctly paid by FAMU for the one week he worked in the OPS position. Due to an error on the part of FAMU, Respondent continued to receive regular bi-weekly gross pay of $250.00 through the pay period ending October 18, 2009. In total, Respondent received $14,190.41 in unearned compensation from FAMU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered requiring Respondent to repay $14,190.41 to FAMU. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
