The Issue The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida. For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs. In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel. After the discussion, the management team decided to terminate FMBC’s contract for outside custodial services and hire an in-house custodian. General Manager Joseph Schwartzel was the final decision maker on this matter. In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming. Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer. During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct supervisor. Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time. FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion. Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance. In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable. In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds. FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash. In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is Ms. Rivera’s sister. In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker. Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows: Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it. On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her. The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera. FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC. Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.” Ms. Rivera also testified that Mr. Mayne frequently asked her “to go out for drinks” and that she perceived those invitations as sexual advances. Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC. Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne. Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC. Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory. The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original). Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC. Ultimate Findings of Fact Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible. Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment. Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC 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 dismissing Ms. Rivera’s Petition for Relief. DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500 9100 South Dadeland Boulevard Miami, Florida 33156 Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2019.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
The Issue The issues to be resolved in this proceeding concern whether, Respondent discriminated against the Petitioner based upon her race or sex and whether she was subjected to retaliation after complaining to the Respondent concerning the alleged harassment.
Findings Of Fact The Petitioner became employed on October 10, 2005, at HOM. She worked as a general laborer and finisher at times pertinent to this case. HOM is a manufacturer of mobile and modular homes at its Lake City, Florida, plant. It has in excess of 15 employees and is therefore a statutory employer with the meaning of Section 760.02(2), Florida Statutes (2006). The Petitioner has a number of blemishes on her employment record with the Respondent. She had performance problems prior to the events leading up to the termination of her employment. She was disciplined for an incident occurring on December 21, 2005, for failure to report to required overtime work, as well as for insubordination. Steve Weeks, the Respondent's Production Manager, deemed the failure to report for required overtime work to be insubordination and a violation of the company's attendance policy. She received an employee warning notice on May 3, 2006, regarding a perceived need for her to "pickup the pace and for her attendance." Mr. Weeks told Ms. Pate that she needed to increase her production pace and needed to work on her attendance and work quality. The Petitioner was given to understand that her employment could be terminated for further violations. The Petitioner maintains she has been subjected to "harassment." Specifically, she complains that her co-workers in the finishing department harassed her by "bumping into me and playing threatening songs, threatening, talking about they were going to beat my behind, you know, just constantly threatening." Her complaints concern Priscilla Berry, Katherine Belford, and Melody Adkins. Melody Adkins is a white female, Priscilla Berry and Katherine Belford are African-American females. Most of the Petitioner's complaints concern Katherine Belford and Priscilla Berry. The Petitioner admits that these individuals never indicated they were committing any alleged harassing acts because of the Petitioner's race or gender. She further acknowledges that the harassment "may not have been for my race" and that the harassment "might have been because I was a female and I was doing my job and I didn't hang with that certain group" of females. No male employees are alleged to have threatened or harassed the Petitioner and she never complained to her direct supervisor, Tommy Smith, concerning any problems related to her race or gender. Ms. Pate spoke to Supervisors Weeks and Smith in an effort to stop the harassment and threats. In response to her complaints Mr. Weeks talked to the supervisors and employees involved in the incidents Ms. Pate complained about and told them they were not to bring personal problems to the work place. Mr. Smith separated the Petitioner from Ms. Belford and Ms. Berry because of the antagonism that had developed between them. He directed her to perform her duties in a different location in order to alleviate the hostilities. The Petitioner called the HOM corporate office on June 27, 2006, and spoke to Mr. Jeff Nugent. Mr. Nugent directed the Regional Human Resources Director, William Allen, to investigate the Petitioner's complaints. Mr. Allen spoke to the Petitioner by phone on June 29, 2006, and arranged a meeting with her for July 11, 2006. The Petitioner told Mr. Allen during that phone conversation that she was being harassed and threatened and that the supervisor was not doing anything to alleviate the matter. She told him that "they" were discriminating against her because she was a black woman and the supervisors were still doing nothing to alleviate her harassment, in her view. The Petitioner met with Mr. Allen on July 11, 2006. Mr. Allen also met with other employees. The plant had been shut down during the first week of July and immediately thereafter on July 11, 2006, the Petitioner had the meeting with Mr. Allen. She found him responsive to her complaints. He took notes during the meeting with the Petitioner and with the other employees he interviewed. The Petitioner complained that she was being harassed and threatened by the above-referenced women on the job, that she "went up the chain of command" to get the harassment to stop but that it had not stopped. She did not complain to Mr. Allen that she was being harassed based on her gender or her race, however. Mr. Allen determined that the problem between Ms. Pate and the other employees was based upon difficulties in "getting along well" or, in effect, personality differences. He also determined that the Respondent had responded to the prior complaints by separating Ms. Pate from working with the employees about whom she had complained. On July 13, 2006, Mr. Smith observed Ms. Pate out of her assigned work area while using a cell phone. The use of a cell phone during working hours, and in working areas, violates company policy. Mr. Smith asked Ms. Pate to report to the plant office to speak to Mr. Weeks. Upon arriving at the office, the Petitioner told Mr. Smith and Mr. Weeks that she was leaving because she did not feel well. Mr. Weeks told Ms. Pate that she could leave the premises, but she would have to bring in a physicians note to prevent the absence from being unexcused. She returned to work the next scheduled work day and did not bring in a physician's note as directed. The previous work day's absence was thus an unexcused absence. Mr. Weeks decided to terminate the Petitioner's employment for her attendance problems and for her failure to submit a doctor's note justifying her absence of July 13, 2006. Her unexcused lack of attendance caused her to have excessive absences in violation of the Respondent's adopted attendance policy. The Petitioner's employment was terminated on July 17, 2006. The Petitioner never told Mr. Weeks that she felt her employment was being terminated in retaliation for her having called the corporate office to complain, or that she was being harassed because of her race and gender.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 10th day of December, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2007. COPIES FURNISHED: Deborah Pate 862 Northeast Coldwater Street Lake City, Florida 32055 Kevin E. Hyde, Esquire Foley & Lardner LLP One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32201-0240 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Respondent, City of Edgewater (the City), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on her age, gender, and/or disability by the manner in which the City terminated Petitioner’s employment. Also at issue is whether Petitioner’s termination was in retaliation for Petitioner’s complaints regarding discriminatory conduct by her immediate superior.
Findings Of Fact The City is an employer as that term is defined in section 760.02(7), Florida Statutes. Petitioner is a white female who was over the age of 40 during the events relevant to this proceeding. Petitioner was hired by the City as a part-time animal control officer on June 9, 1993. At the time Petitioner was hired, animal control was part of the City’s police department. On October 15, 1993, Petitioner was transferred to a full-time position as records clerk/telecommunicator in the police department. Petitioner maintained the department’s records and answered all police calls, including 911 calls. She dispatched officers and emergency personnel. Petitioner testified that this was a desk job with no real physical requirements beyond walking to a window to deal with members of the public. She received excellent evaluations and stayed in this position until early 1999. While working this job, Petitioner obtained police training at Daytona State College. Upon graduation, Petitioner applied for a job as a police officer with the City. On February 19, 1999, the City hired Petitioner as a police officer. Petitioner was promoted to sergeant on May 7, 2006, and served in that position until her demotion following an altercation with a female detainee in the City’s holding facility on June 16, 2011. Petitioner was continuously employed by the City for 18 years and eight months. During her employment, she received regular pay increases and numerous commendations. Over the years, she received three written warnings and one demotion, from sergeant to officer after the incident on June 16, 2011. Chief of Police David Arcieri characterized her disciplinary record as good in light of Petitioner’s length of service. During the course of her employment, Petitioner had multiple health problems. In 2001, during work-related mountain bike training, Petitioner suffered a fall that badly injured her shoulder.3/ Petitioner had surgery and recalled that she missed at least four months of work. When she came back to work, Petitioner was unable to perform the normal duties of a police officer. She was allowed to return in a light-duty desk position, working with the City’s chief of grants. She worked in this position for approximately six months before returning to regular duty as a police officer. In 2004, Petitioner was diagnosed with lupus and rheumatoid arthritis (“RA”). Petitioner testified that she freely discussed her condition with her co-workers because of the problems she had establishing a medication regime that did not cause allergic reactions. Until late 2011, she was forced to give herself painful injections in the stomach. She now has a port implanted that allows her to take the medications via infusion. Chief Arcieri confirmed that it was common knowledge in the City’s police force that Petitioner had lupus. Petitioner testified that she missed very little work because of the lupus and RA. She requested no accommodations in the workplace for these conditions. Sometime in 2009, Petitioner underwent neck surgery to repair a disc “that was almost gone.” Petitioner recalled discussing her condition with then-Sergeant Arcieri4/ prior to the surgery. They talked about the fact that her doctors were unsure whether the neck condition had been brought on by her RA. Petitioner testified that she was out of work for two or three months due to this surgery, but did not require a light-duty assignment when she reported back to her position. On September 22, 2009, Petitioner was at work conducting a witness interview when her nose began bleeding uncontrollably. A fellow officer drove her to the emergency room. Another city employee came to the emergency room to make sure Petitioner got home safely. At the hospital, Petitioner was diagnosed with hypertension. She missed several days of work and was placed on medications to control her blood pressure. City Manager Tracey Barlow testified that he was contemporaneously aware of Petitioner’s hypertension. Petitioner requested no workplace accommodations for her hypertension. In early 2010, Petitioner was out of work for a time with uncontrolled vomiting and diarrhea. Petitioner’s physician, Dr. Beatrice Bratu, diagnosed her condition as stress-induced colitis. Petitioner testified that her treatments for the colitis lasted about three months but that she was back at work within a few weeks. On March 15, 2010, Personnel Director Donna Looney addressed the following email to Petitioner: We are very pleased to see you back and doing well! I am in receipt of a note from Dr. Bratu which indicated you may return to work. I want to stress that we understand the necessity for you to follow your doctor’s instructions. No restrictions are noted; therefore you are allowed to continue your regular duties. Please be advised that you have a continuing obligation not to work when you are feeling impaired (fatigue, weakness, pain, etc.). It is City policy that if you expect to have any adverse side effect while taking medication, you must inform your supervisor, and you are never to drive a City vehicle when you are feeling impaired. If I can be of any further assistance, please feel free to contact me. Petitioner requested no workplace accommodation related to her colitis. On June 16, 2011, Petitioner was involved in an altercation with a 28-year-old female detainee at the City police station. Several officers submitted witness statements about the incident and police station video cameras captured the essentials of the acts that occurred. The video recording did not include sound. The detainee, J.G., had been arrested for battery and was by all accounts heavily intoxicated and belligerent. J.G. asked to go to the bathroom. Petitioner let her out of the cell and escorted her to the bathroom. The video shows Petitioner standing in the open doorway of the bathroom, waiting for J.G. to finish. Petitioner told the police department’s internal affairs investigator that J.G. asked for tampons. Petitioner responded that the police department did not keep such items and that she would have to clean up as best she could with the materials available in the bathroom. J.G. replied that she could not put back on the shorts she had been wearing. She stated they were not her shorts and they were bloody. Petitioner told her that she had to put the shorts back on. At this point, the video shows the shorts flying out of the bathroom and landing behind Petitioner, who kicked them back into the bathroom and stepped into the doorway. J.G., stepping into camera range, picked up the shorts and threw them at Petitioner. The shorts hit Petitioner along her beltline. Petitioner took a step forward and struck J.G. in the face with her open right hand. J.G. pushed forward momentarily, but retreated into the bathroom as Petitioner continued to advance. At this point, Officer Eric Selvaggio entered the picture to assist. For a period of roughly forty seconds, all three people were inside the bathroom, invisible to the camera. The doors then opened, and the three emerged. The two police officers guided the handcuffed J.G. toward a point outside the range of the camera. J.G. wore only a shirt and underwear. The video next cut to an empty holding cell. Petitioner and Officer Selvaggio entered the picture, guiding the handcuffed J.G. toward the cell. J.G. continued to struggle with the officers. She dropped to the ground. The officers pulled her to her feet and pushed her into the cell. J.G. kicked at Petitioner. The camera angle made it impossible to see whether there was contact, but Petitioner stated at the time, and has consistently maintained since the incident, that J.G. kicked her in the stomach. Immediately after the kick, Petitioner attempted to push her way past Officer Selvaggio toward J.G. Petitioner drew back her right fist but Officer Selvaggio’s left arm blocked her from throwing a punch. He pushed Petitioner away and then secured J.G. in the holding cell. Though there is no sound on the video, it is clear that Petitioner and J.G. continued an animated conversation after J.G. was locked in the cell. Multiple police witnesses recalled Petitioner calling J.G. a “fucking bitch.” Petitioner and the other officers on duty went out the back door to discuss the situation. The video appears to show Petitioner performing a joking reenactment of her attempted punch at J.G. Officer Selvaggio stated to the investigator that Petitioner told him she might not charge J.G. for the incident, but he replied that under the circumstances it would be best if she did follow through with charges. Petitioner filled out a charging affidavit against J.G., charging her with battery on a law enforcement officer, in violation of section 784.07(2)(b), Florida Statutes. In her charging affidavit, Petitioner wrote as follows, in relevant part, verbatim: On June 16, 2011 at approximately 12:45 a.m., the defendant, [J.G.] was in police custody at the Edgewater Police Department on a battery charge from a previous police call. The defendant requested to use the bathroom and was escorted to the bathroom by me. The defendant was upset over being arrested, while sitting on the toilet, she kicked off her shorts and threw them out of the restroom stating that she was not putting them back on as they were not hers and were soiled from her menstrual cycle. I pushed the shorts back into the restroom with my foot and advised her she needed to put them back on, she screamed she was not going to. When the defendant rose from the toilet, she picked up the shorts and threw them directly into my face, striking me with the shorts. The defendant then pushed herself up against the sink and began calling me a bitch and telling me again she was not putting the shorts back on and she was leaving. I entered and attempted to get her out of the bathroom, she began to punch at me. Myself and Officer Selvaggio, who was standing nearby, grabbed hold of the defendant in an effort to get her out of the bathroom. The defendant struggled against us, before we got her to the floor and secured her. As we were getting her back into the cell, the defendant threw herself onto the bench and kicked out striking me in the stomach with her right foot. The defendant was left in the cell with no shorts on and in handcuffs . . . . It should be noted that Petitioner’s charging affidavit states that J.G. hit her in the face with the bloody shorts, when in fact the shorts hit Petitioner in the waist area. Petitioner failed to mention that she slapped J.G. in the bathroom or that Petitioner attempted to punch J.G. in the holding cell. Chief Arcieri testified that when he came in later that morning, he reviewed all of the reports filed since the previous day. Petitioner’s report caught his eye because it involved battery on a law enforcement officer inside the station house. He instructed his assistant to pull the video of the incident and make one copy for him and one for Petitioner. When he saw the video, Chief Arcieri notified the Florida Department of Law Enforcement (“FDLE”) and requested an investigation. Chief Arcieri testified that he went to FDLE because he thought criminal charges could ensue in the case and that he does not like to investigate criminal matters internally. He also ordered an internal affairs investigation, but placed it on hold pending the outcome of the FDLE investigation. On June 21, 2011, Petitioner was placed on paid administrative leave for the duration of the investigations. J.G. refused to cooperate with the FDLE investigators. Without a victim willing to go forward, no criminal charges could be brought against Petitioner. The FDLE investigation was dropped. The internal affairs investigation was completed on August 15, 2011. The investigator’s written report concluded as follows: Sgt. Winston did commit the act of perjury on an official felony charging affidavit. Sgt. Winston did in fact using her hand strike a prisoner in the face which caused her to fall back onto the sink. Sgt. Winston did reach her right arm over the shoulder of Officer Selvaggio in an attempt to strike a handcuffed prisoner which Officer Selvaggio was attempting to secure inside the holding cell. Sgt. Winston did violate Edgewater Police [sic] & Procedure by removing a prisoner, removing the prisoner’s handcuffs without another officer present and allowed the prisoner to use the restroom. Sgt. Winston violated Edgewater Policy & Procedure by entering the cell/booking area wearing both her issued side arm as well as her issued taser. Sgt. Winston violated Edgewater Police [sic] & Procedure by openly criticizing the policy of securing any and all weapons prior to entering the booking/cell area when prisoners are present. This was done openly in the presence of fellow officers. Sgt. Winston violated City Policy and Procedure 12.02 Inappropriate/Unacceptable Behavior. Sgt. Winston did violate Edgewater Police Department Policy & Procedure Excessive force not resulting in injury. Petitioner was represented by counsel for the Fraternal Order of Police (“FOP”) in defending herself against the allegations that resulted from the internal affairs investigation. Negotiations ensued between the City and Petitioner to resolve the matter short of litigation. A settlement agreement was reached and executed on August 24, 2011. Petitioner agreed to findings that some of the allegations were sustained.5/ Petitioner agreed to a demotion from sergeant to officer, effective August 19, 2011, with a resulting salary cut, and she agreed to attend anger management courses. On August 24, 2011, Chief Arcieri ordered Petitioner to report for duty at 6:00 a.m. the following morning. Petitioner called in sick and did not report for work on August 25, 2011. Ms. Looney, the personnel director, contacted Petitioner to find out why she was not reporting for work. Petitioner told Ms. Looney that she had sustained a back injury during the altercation with J.G. on June 16, 2011. Ms. Looney testified that this was the first she knew of Petitioner’s back injury. In a letter dated August 24, 2011, and received by Chief Arcieri on August 25, 2011, Petitioner’s personal workers’ compensation attorney wrote as follows, in relevant part: As you know, Ms. Winston is an 18 year employee with our [sic] agency who was recently in an altercation with a belligerent, drunken female on June 16, 2011. Ms. Winston was injured during the arrest but was placed on Administrative leave pending an internal investigation and the matter has not been reported as an injury as of yet. Ms. Winston was not aware that she had injured her low back immediately due to circumstances surrounding the altercation and the typical adrenaline response resulting from such an altercation. She thought she was just sore from being beat up a bit but as the weeks went by her condition worsened. A recent MRI has revealed two herniated discs in the lower back and Ms. Winston does require medical treatment for this work related injury. I am requesting at this time that the Agency immediately file a First Report of injury on behalf of Ms. Winston. This should be considered notice under Chapter 440 of the work related injury. In addition to the back injury, Ms. Winston now suffers from uncontrolled high blood pressure which is also disabling. Ms. Winston will be receiving a letter from her doctor indicating that she is unable to work due to her uncontrolled blood pressure at this juncture. That is also a work related claim under F.S. 112.18, more popularly known as the “Heart/Lung Bill.” This claim should also be processed and medical care should be provided as soon as possible. Please see that a First Report of Injury is completed with regard to this claim . . . . In a related claim, Ms. Winston also has a September 22, 2009 uncontrolled hypertension incident which resulted in hospitalization. As you know, the 2009 accident occurred while Ms. Winston was interviewing a sex crime victim. She was experiencing a severe headache and then had an uncontrollable nose bleed during the interview. The blood pressure reading at the time revealed her blood pressure was severely elevated and she was taken to the hospital. This incident should have triggered the immediate filing of a First Report of Injury under F.S. 112.18 as referenced above. For whatever reason, no First Report of Injury was filed but I am requesting that you file such a First Report of Injury immediately on Ms. Winston’s behalf and that you provide appropriate medical care for this condition . . . . Finally, Ms. Winston advises me that she has been under an internal investigation since the June, 2011 incident. This internal investigation appears to be entirely inappropriate given the circumstances surrounding this event and would appear to be part of an intimidation practice on the part of your Agency, which is in clear violation of F.S. 440.205. As I am sure you know, 440.205 prohibits the harassment, intimidation, retaliation, or termination of an employee by virtue of a workers’ compensation claim. Needless to say, Ms. Winston has numerous ongoing workers’ compensation claims and it appears that all of the harassment which she has been subjected to since the time the internal investigation was opened in this matter appears to be directly attributable to her ongoing workers’ compensation issues. It should also be noted that Ms. Winston is suffering from post traumatic stress disorder as a result of this recent altercation and all of the fallout related to same. As I am sure you are well aware, post traumatic stress disorder of this nature is also covered for First Responders under the auspices of F.S. 112.1815. I am requesting again that a First Report of Injury be filed relative to this issue and that appropriate medical care be provided. Ms. Winston is entitled to full pay as she was injured during an altercation with a violent individual. Full pay is appropriate pursuant to the provisions of F.S. 440.15(11). This means that she should be receiving a regular paycheck without deduction of sick or vacation bank time. Please see that the appropriate adjustment is made relative to payment of benefits and feel free to contact me with any question . . . . On August 30, 2011, Petitioner submitted three “Incident/Accident Information Forms” to the City in regard to her workers’ compensation claims. The first states that Petitioner suffered an injury to her lower back on June 16, 2011, when “an intoxicated combative prisoner . . . kicked me in my stomach just above my gun belt.” The second describes “stress” as the injury, dated June 28, 2011, caused by “constant harassment & belittled by Dave Arcieri.” The third form states that the date of injury was September 22, 2009, the injury was “blood pressure caused bleeding of the nose,” and describes the incident in terms similar to those used in the attorney’s letter of June 24, 2011. Petitioner testified that she still sees a psychiatrist once a month and goes to counseling every two weeks, but that she first sought mental health counseling in June 2011 because of problems with Chief Arcieri that dated from long before he became chief. She testified that “he would cuss me out, call me names, have people that were subordinates watching me and reporting back to him to make sure I didn’t breathe the wrong way.” Petitioner testified that Chief Arcieri’s animus toward her dated from her handling of a situation as a sergeant that led to the firing of an officer. A member of Petitioner’s squad reported to her that an officer in another squad stole property from a civilian during a traffic stop and then gave him the stolen item. Petitioner told the officer to file a report and drop the item into evidence and that she would meet with the other officer’s sergeant. The other officer’s sergeant required him to write a report. The officer lied in the report. Petitioner and the other sergeant brought the matter to the attention of their superiors. After an investigation, the department had no choice but to fire the officer. At a sergeants’ meeting a little while later, then- Administrative Sergeant Arcieri said that Petitioner was incompetent. If she had handled the situation differently, Sergeant Arcieri would not have had to fire a good officer. Petitioner asked how the department could tolerate a lying thief in its midst. Sergeant Arcieri told her that the officer could have been reprimanded in some other way. Petitioner testified that she was afraid of Chief Arcieri because of threats he made to her. He made it clear to her and to any other officer who thought about reporting something to Ms. Looney or Mr. Barlow that these officials would let him know and the snitch would pay a price. On September 27, 2011, Petitioner sent an email to Michelle Grenham, Chief Arcieri’s secretary, stating that she would be unable to attend the anger management class required by the settlement agreement because she was undergoing major surgery on September 28 at Halifax Hospital in Daytona Beach. Ms. Grenham forwarded the email to Chief Arcieri and Ms. Looney. Petitioner underwent surgery on September 28, 2011, to repair the herniated discs in her back. Petitioner testified that prior to the surgery, she had difficulty walking, standing, bending at the waist, reaching, and climbing stairs due to the pain in her back. She was able to drive a car but only for short distances. She did not have full control of her bladder and bowels. She could only sleep by putting herself in a fetal position then bracing herself with pillows to keep her in that position. Petitioner described the surgery as less than a complete success. She had numbness in her right leg, was unable to bend, squat, kneel or stretch, and could not sit for very long. She eventually required spinal injections and the surgical insertion of a morphine pump in her stomach for pain in her spine. The morphine pump was still in place at the time of the hearing. Physicians also implanted a spinal cord stimulator in her back. She regained control of her excretory functions but was unable to walk without the use of a walker for several months and a cane thereafter. She wore a back brace most of the time. On November 29, 2011, Petitioner and her husband met with Mr. Barlow and Ms. Looney to discuss Petitioner’s medical situation and when she might return to work. The meeting was held at Petitioner’s request. Petitioner testified that she came into the meeting wearing a back brace and using a walker. Her husband had to drive her to the meeting. Petitioner testified that she asked for the meeting to find out if she could get an extended leave until her physician cleared her to go back to work. She also wanted to discuss Chief Arcieri’s harassment and belittling of her. At the meeting, Petitioner told Mr. Barlow that she didn’t know how long the healing process would take or whether she would need additional surgeries. Petitioner testified that Mr. Barlow told her it might be in her best interest to retire, in light of her age and her many health problems, including RA, lupus, hypertension, and now the back injury. Mr. Barlow stated that it seemed to him that Petitioner didn’t have anything that was going to go away, and that anyone with a back injury would have issues with it for life. Mr. Barlow asked whether Petitioner really thought she could ever come back as a police officer. Petitioner could only say that she didn’t know. Petitioner testified that she told Mr. Barlow that she hoped to reach retirement as a police officer but that she was willing to take another position with the City if her physical limitations kept her from returning to her former position. Petitioner testified that she told Mr. Barlow that she had a doctor’s appointment on May 3, 2012, and that Mr. Barlow promised to give her a leave of absence until that appointment. Petitioner’s husband, Ricky Winston, testified that at the meeting, his wife explained her injuries to Mr. Barlow and complained about Chief Arcieri’s constant ridicule and badgering. Mr. Winston stated that Mr. Barlow had a calendar and some paper and a calculator that he was using to diligently figure out something. It turned out that Mr. Barlow was calculating the date of Petitioner’s full retirement, with the idea of carrying her on the City’s employment roster until then. Mr. Winston testified that he left the meeting with the understanding that Mr. Barlow had agreed to grant Petitioner unpaid leave until she reached retirement. Mr. Winston recalled that Mr. Barlow listed all of Petitioner’s physical problems and asked why she didn’t just quit. Mr. Winston testified that this question was devastating to his wife because she never had any intention of leaving the job she loved. Ms. Looney testified that she did not recall Mr. Barlow mentioning any of Petitioner’s physical infirmities aside from her back injury. She did not recall Mr. Barlow using a calculator or calendar during the meeting or stating a date for Petitioner’s retirement. Ms. Looney stated that the goal was for Petitioner to return from her next doctor’s appointment with a physician’s statement as to when she could return to work, whether at full or light duty. Ms. Looney’s assumption, based on Petitioner’s condition, was that Petitioner would return to light duty at first. Mr. Barlow explicitly stated that the City wanted Petitioner to return to work, either full or light duty. Ms. Looney testified that she believed everyone at the meeting understood that Petitioner wanted to return to light duty and that the police department would try to find light duty restricted work for Petitioner when her doctor cleared her to return. Petitioner would remain on unpaid leave until her next doctor’s appointment in January 2012, at which time the City would need to know whether she could return to work. Petitioner had given Ms. Looney light duty notes from physicians in the past, which led Ms. Looney to assume that Petitioner understood what she needed to provide to the City. Ms. Looney stated that Mr. Barlow did not promise to keep Petitioner’s job open until May 2012. Mr. Barlow recalled almost nothing about the November 29, 2011, meeting with Petitioner. The only relevant specific testimony he provided on the subject was a denial that he told Petitioner that she could have a leave of absence until May 2012. However, given his lack of recall as to anything else that transpired in the meeting, Mr. Barlow’s testimony on this single point is not credited. The testimony of Petitioner and her husband regarding the statements made at the November 29, 2011, meeting is credited as to Mr. Barlow’s discussing Petitioner’s retirement and as to the fact that a discussion of Chief Arcieri’s behavior toward Petitioner occurred. On these points, Petitioner and Mr. Winston were credible, consistent witnesses. Ms. Looney’s testimony on these points was confused and equivocal. Mr. Barlow’s testimony was of little use at all as he claimed to remember virtually nothing about the meeting. However, the testimony of Petitioner and her husband cannot be credited as to the matter of Mr. Barlow’s promise to give Petitioner a leave of absence until May 3, 2012. Even disregarding Mr. Barlow’s convenient memory on this point, Petitioner’s testimony and that of her husband diverged on the ground for the leave of absence. Petitioner testified that Mr. Barlow gave her until May 3, 2012, because that was the date of her next doctor’s appointment. Mr. Winston vaguely recalled that a date was mentioned, either March or May, and that this date was based on Mr. Barlow’s calculation of Petitioner’s retirement date. Petitioner’s claim that Mr. Barlow gave her until May 2012 is further undercut by documentary evidence. On January 26, 2012, Petitioner sent Ms. Looney an email that stated as follows, in relevant part: Call me when you get the chance, I have prescriptions to pick up and get fitted for another brace, but I am going to need to take a leave of absence for a bit. Dr. Vinas [Petitioner’s surgeon] is not releasing me for duty at this time . . ., I will be going into a new brace and will be going to pain management for epidural injections in my spine. I have attached the letter from Dr. Vinas, as well as a copy of the medications I will be taking. My next appointment with him will be May 03/2012 unless the Dr. at the pain management center feels I need further surgery. I have no idea what to do about taking a leave, is there paperwork I need to file or just send you a letter? I would rather speak to you so if you are not busy please call me . . . . If the November 29, 2011, meeting had settled the question regarding Petitioner’s leave of absence until her doctor’s appointment on May 3, 2012, there would have been no need for Petitioner to write to Ms. Looney on January 26, 2012, to request a leave of absence and to inform Ms. Looney that her next doctor’s appointment would be on May 3. This email is consistent with the assertion made in the City’s February 21, 2012, letter terminating Petitioner’s employment that Mr. Barlow agreed to maintain the status quo until January 23, 2012, the date of Petitioner’s next scheduled doctor’s appointment.6/ In an email to Ms. Looney dated February 9, 2012, Petitioner stated, “[A]t this stage nothing surprises me anymore, I mean after all, I was supposed to be back on my feet and rarin to go by January, well that, as you know did not happen.” Petitioner closed a separate February 9, 2012, email to Ms. Looney with the following: “I forwarded this to [Mr. Barlow] also, but if he does not get it please let him know and tell him I said to keep his chin up as he always does and thank him for allowing me to take a leave of absence. Hopefully it won’t be much longer.” These emails cast further doubt on Petitioner’s claim that she had obtained a leave of absence until May 3, 2012, from Mr. Barlow at the November 29, 2011, meeting. The greater weight of the evidence indicates that Petitioner was granted an unpaid leave of absence at the November 29 meeting, but only until her physician cleared her to return to work in some capacity, which Petitioner at the time anticipated would occur in January 2012. The evidence presented at the hearing showed that Petitioner had used her twelve weeks of leave under the Family Medical Leave Act (“FMLA”) as of November 16, 2011. She had exhausted all of her accrued leave as of December 9, 2011, when she formally began the unpaid leave of absence. On January 1, 2012, Petitioner began receiving the City’s long-term disability benefits. Ms. Looney signed a letter to Dr. Federico Vinas, dated January 25, 2012, that stated as follows: Ms. Winston has informed us she is a patient of yours. She has a follow-up appointment January 26, 2012 in association with surgery perform [sic] by you. First, and foremost, enclosed you will find the Authorization to Disclose Medical Information form executed by Ms. Winston along with her job description (Police Officer) setting out the physical requirement. JoAnne is a valued City employee and it would be greatly appreciated if you verify her ability to perform any or all of these duties. Please provide us with specific restrictions or requirements necessary not to aggravate her condition and advise as to exactly when she can be cleared for full police officer’s duties. Your expertise is [sic] this matter is greatly appreciated. Please contact me for any further information you may need. The City’s job description for “Police Officer” reads as follows, in relevant part: PRIMARY DUTIES AND RESPONSIBILITIES: (all duties may not be performed by all incumbents) Patrols designated area of the City to preserve the peace, to prevent and discover criminal acts, and to enforce traffic regulations. Answers calls and complaints involving drunkenness, domestic disputes, assaults and batteries, missing persons, fires, thefts, accidents and other felonies and misdemeanors. Is responsible for being knowledgeable of the crime problem in assigned work area and developing strategies to combat the problem. Develop contacts and provide intelligence reports to detectives and administration. Makes preliminary investigations at crime scenes or incidents, protects and collects physical evidence, locates witnesses, interviews witnesses, makes arrests, assists paramedics with basic and advance [sic] life support. Interviews complaints [sic] and witnesses to obtain information about crimes; assists in investigative work. Prepares evidence for issuance of complaints and testifies as a witness in both civil and criminal court, transports prisoners. Patrols school zones and high activity areas when assigned. Assists motorists, directs traffic, investigates accidents, recovers stolen automobiles, prepares detailed reports, advise of and interpret laws and ordinances and provides general information to the public. Cooperates and coordinates with other law enforcement agencies and other components of the Criminal Justice System. * * * Environmental Conditions: Outdoor environment with exposure to discomforting and dangerous working conditions Office environment with exposure to computer operations Physical exertion in lifting/moving items weighing up to 50 pounds Routine travel is required along daily assigned routes Occasional overnight travel is required Other physical/mental requirements may apply * * * DISCLAIMER STATEMENT This job description is not intended as complete listing of job duties. The incumbent is responsible for the performance of other related duties as assigned/required. The physical demands described herein are representative of those that must be met to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable qualified individuals with disabilities to perform the essential functions. On January 26, 2012, Dr. Vinas forwarded to Ms. Looney a “Work Status” form regarding Petitioner that provided as follows: The above captioned patient is being treated in this office. The patient’s current work status is as follows: ( ) This patient was seen for treatment in our office today, please excuse any absence from work or school. (X) Based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time. Restrictions The patient may return to or continue to work with the following restrictions: ( ) No lifting over pounds. ( ) No excessive/repetitive bending or twisting. ( ) No prolonged sitting/standing or stooping. ( ) No excessive/repetitive pulling or pushing. ( ) No excessive activity with arms above shoulder level/overhead activity. ( ) ALL OF THE ABOVE ( ) Specific instructions ( ) This patient does not work at this time, but has been instructed to limit household/daily activities so as to remain within the above noted restrictions. ( ) This patient’s most recent evaluation supports a return to normal, routine work activities. The effective date of this Work Status is from the date noted above until further notice. If the patient’s current position of employment can be modified or other position found that conforms to the above restrictions, then the patient may return to work. If these restrictions cannot be maintained, I would recommend that the patient be excused from work until further notice. The patient’s work status will be evaluated on a visit-to-visit basis. Ms. Looney testified that based on Dr. Vinas’ Work Status form and her own conversations with Petitioner, she concluded that Petitioner was unable to return to work in any capacity, full or light duty, as of January 26, 2012. At the hearing, Petitioner conceded that she could not have returned to work as a police officer on January 26, 2012. As set forth in Finding of Fact 54, supra, Petitioner notified Ms. Looney via email on January 26 that her next appointment with Dr. Vinas would be on May 3, 2012. In the same email, Petitioner asked for guidance on how to request a further leave of absence. The record of this proceeding includes a “Request for Leave of Absence” form in which Petitioner asked for a leave of absence commencing on January 26, 2012, with an “anticipated return date” of May 3, 2012. At the hearing, Petitioner could not recall filling out this form. In her testimony, Ms. Looney indicated that she filled out the form for Petitioner. In the space in which the applicant is to set forth reasons for the leave of absence, Ms. Looney wrote, “See attached e-mail,” which was Petitioner’s January 26 email to Ms. Looney. Mr. Barlow denied the request for a further leave of absence by signature on the request form. The form does not indicate when Ms. Looney filled it out or when Mr. Barlow denied the request. The record is also unclear as to when Petitioner was notified that the City was denying her a further leave of absence. As late as February 9, 2012, Petitioner was still sending chatty emails to Ms. Looney regarding her medical condition and treatment, even asking Ms. Looney and Mr. Barlow to stop by her house for a visit if they are ever in the neighborhood. The first clear notice of the denial was in the termination letter set forth in the next paragraph. On February 21, 2012, Ms. Looney wrote the following letter to Petitioner: On November 29, 2011 Tracey Barlow, City Manager, and myself met with you to discuss your medical situation. You informed us your next doctor’s appointment was January 23, 2012, at which time you were hoping to be taken out of your brace. We agreed your continued employment with the City would depend on your returning to full duty and I would send Dr. Vinas a letter requesting exactly when you would be cleared to return to full duty as a police officer. Following your exam on January 26, 2012, you emailed me Dr. Vinas’ work status form which states “based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time.” You also stated your next appointment is May 3, 2012 and asked about taking a leave of absence. JoAnne, as you are aware your FMLA was met as of November 16, 2011; all your workers compensation claims have been denied;7/ you exhausted all of your accruals as of December 9, 2011 and have been granted unpaid leave of absence for the previous 74 days, and as of January 1, 2012 you began receiving the city’s long term disability benefit. Therefore, due to all the facts stated too [sic] include uncertain ability to return to work date, the City Manager has denied your request for leave of absence exceeding 30 days. As a result, consider this formal notification that your employment with the City of Edgewater ends effective February 24, 2012. It is very important that you contact the Personnel Department to make the necessary arrangements for your continued insurance coverage and any outstanding benefits/obligations you have with the City. Petitioner testified that at the time the City terminated her employment, she was still using a cane at home and a walker when she went out. There is no question that Petitioner was unable to return to full duty as a police officer on February 24, 2012. It was Petitioner’s contention that she could have come back to work for the police department in some form of light duty, as she had been allowed to do in the past, or in one of several jobs that the City advertised as open during her convalescence. Petitioner further contended that Ms. Looney should have sent Dr. Vinas the job descriptions of all open City jobs rather than just the job description of a police officer. As to the last point, Ms. Looney testified that it was standard practice for the City to send the physician an employee’s current job description for an assessment of the employee’s ability to return to work. Petitioner was treated no differently than any other City employee in this regard. Petitioner testified that she asked the City to bring her back in another position, but could offer no documentary evidence to support that testimony. She claimed that part of the discussion at the November 29 meeting with Mr. Barlow and Ms. Looney was her hope to retire as a police officer, but her desire to remain a city employee in whatever capacity she could. Ms. Looney testified that Petitioner never asked to work in any position other than that of police officer. Petitioner sent an email to Ms. Looney on December 26, 2011, asking whether Ms. Looney had “heard from my Dr. as to when I might be able to come back light duty or anything else?” Petitioner claims that the “anything else” portion of the email indicated her desire to be placed in any available job. Ms. Looney read the email as merely asking whether she had heard from Petitioner’s doctor, not as a job request. Ms. Looney’s reading is not unreasonable given that this was the only document Petitioner produced that even arguably contained a statement asking to be placed in a position other than police officer. In any event, whether Petitioner asked to be placed in another position is not decisive because of the blanket statement in Dr. Vinas’ work status form. Ms. Looney testified that she was unable to place Petitioner in any position because Petitioner’s physician had clearly stated that it was in her best interest to be excused from all work duties. It was always the City’s understanding that Petitioner would return to work in a light duty function at first, but in fact Petitioner was not cleared to work at all. Ms. Looney might have followed up with Dr. Vinas and inquired whether Petitioner was capable of doing clerical work or some other form of indoor, deskbound job, but Petitioner has pointed to nothing that required Ms. Looney to do so in light of Petitioner’s failure to request that accommodation. Ms. Looney testified that it was the City’s practice to hold off on discussing positions outside of an employee’s department until the employee has actually been cleared for light duty. No evidence was presented that the City treated Petitioner any differently than it treated other employees in a similar position. Similarly, Mr. Barlow might have agreed to extend Petitioner’s unpaid leave of absence to May 3, 2012, but he was not required to do so. At the time of her termination, Petitioner had used twelve weeks of FMLA leave and had been granted an additional 74 days of unpaid leave at Mr. Barlow’s discretion. Petitioner had been out on some form of medical leave for approximately six months. The City did not seize on some early opportunity to dismiss Petitioner; rather, the City had anticipated that Petitioner would return to work as a police officer and waited until Petitioner had exhausted all avenues of leave except a second discretionary unpaid leave of absence before deciding to terminate her employment. Petitioner offered no credible evidence that her termination was based on her age, gender, disability or perceived disability or that she was treated differently than other employees due to her age, gender, or disability. The lone indication of possible bias was Mr. Barlow’s statement at the November 29, 2011, meeting that Petitioner should consider retirement in light of her age and poor health. This statement may be easily read as a kindly (if poorly phrased) expression of concern for Petitioner. By her own testimony, Petitioner was on good terms with Mr. Barlow and Ms. Looney right up to the time of her termination. Petitioner sent solicitous emails to them as late as February 9, 2012. Petitioner’s feelings were hurt by the statement, but no other ill effect followed. She was granted the requested unpaid leave of absence and remained employed by the City for three more months. Petitioner testified that she never considered herself disabled and prided herself on not calling in sick or requesting accommodations for her conditions. Ms. Looney, Mr. Barlow, and Chief Arcieri all testified that they did not perceive Petitioner as having a disability that required accommodation in the workplace, though they were all aware of at least some of her chronic conditions such as lupus, RA, and hypertension. Petitioner claimed that Chief Arcieri carried on something of a vendetta against her. Chief Arcieri testified that prior to the demotion his relationship with Petitioner was friendly. When Petitioner’s house was flooded, Chief Arcieri took off work to help Mr. Winston solder a broken shower valve. After Petitioner was demoted, the relationship was less friendly but always professional. Chief Arcieri testified that he has never yelled at Petitioner or any other employee. He never called her names. The harassment and belittling that Petitioner alleged never happened. Chief Arcieri denied any sort of gender bias, pointing to the successful efforts his department has made to recruit and hire female officers. He denied ever making a comment about Petitioner’s age. He testified that he never considered Petitioner disabled while she was on active duty, despite her lupus. Petitioner never requested an accommodation and Chief Arcieri never saw the need for an accommodation. Chief Arcieri testified that at the close of the internal affairs investigation of the June 16, 2011, incident, he declined to sustain some of the allegations in order to protect Petitioner from a referral to the Criminal Justice Standards and Training Commission (“Commission”) for further discipline. Chief Arcieri assented to a request by the FOP that he submit a letter to the Commission stating that he believed the demotion was sufficient and asking the Commission not to take further action against Petitioner. Petitioner’s testimony against Chief Arcieri consisted of general statements that he harassed and belittled her. The only specific incident Petitioner recounted as to the source of any possible animus the chief bore toward her involved the firing of the officer who stole something during a traffic stop. Even if Petitioner’s version of events is accepted, Chief Arcieri’s anger toward Petitioner had nothing to do with her age, gender, or disability. He called her “incompetent.” He was upset about the manner in which Petitioner performed her job, which he believed led to the needless dismissal of a good officer. Whether Chief Arcieri was right or wrong to be angry at Petitioner, he did not engage in an act of discrimination. Even if the factfinder were to accept Petitioner’s description of Chief Arcieri as a bully on the job, there is no evidence aside from Petitioner’s general comments to indicate that she was singled out due to her age, gender or disability. It is telling that in testifying about her fear of reporting the bullying, Petitioner stated, “I was afraid. I was very afraid. David Arcieri made it not only clear to me, but to any other officer who even thought about going to report to Donna Looney or to Tracey Barlow, ‘Don’t worry, they’ll let me know and you will pay the price.’” This statement might be evidence that Chief Arcieri is a bully, a poor leader of his department, or a bad administrator. However, the statement does not establish that Chief Arcieri discriminated against Petitioner in a manner prohibited by section 760.10, Florida Statutes. If anything, the statement indicates that Petitioner found herself in the same boat as the other officers in her department.8/ Petitioner was aware of and understood the City’s nondiscrimination and no-harassment policy, the operative language of which states: The nature of some discrimination and harassment makes it virtually impossible to detect unless someone reports the discrimination or harassment. THUS, IF ANY EMPLOYEE BELIEVES THAT HE OR SHE OR ANY OTHER EMPLOYEE IS BEING SUBJECTED TO ANY OF THESE FORMS OF DISCRIMINATION OR HARRASSMENT, HE OR SHE MUST REPORT THIS TO THE PERSONNEL DIRECTOR (386-424-2408) AND/OR CITY MANAGER (386-424-2404). If you are encountering a problem, please do not assume that the City is aware of it. The City is committed to ensuring that you have a pleasant working environment, and your assistance in bringing your complaints and concerns to our attention is a necessary first step. (Emphasis in original). The policy was included in the City’s personnel manual. Petitioner was provided with copies of the policy and amendments thereto several times during her tenure with the City. Petitioner conceded that, notwithstanding the policy, she did not report any incidents of harassment or discrimination to either Ms. Looney or Mr. Barlow while she was actively working for the City. The allegations of intimidation and harassment made by Petitioner’s attorney in his August 24, 2011, letter and Petitioner’s allegation of “constant harassment and belittlement by Dave Arcieri” in her workers’ compensation incident report were made only after Petitioner had been off the job for eight weeks. Further, the specific allegations made by Petitioner’s attorney claimed that the City was in violation of section 440.205, Florida Statutes, not that Chief Arcieri or any other City employee was discriminating against or harassing Petitioner because of her age, gender, disability, or perceived disability. The evidence produced at the hearing established that Petitioner sustained an injury to her back, most likely due to an altercation with a detainee on June 16, 2011, that necessitated surgery and a rehabilitation process that was not complete even at the time of the hearing in May 2014. The City carried Petitioner as an employee until all of her available leave had been used and then for another 74 days on an unpaid leave of absence. The City had no legal obligation to grant Petitioner an unpaid leave of absence but did so in the hope that Petitioner would be able to return to work in January 2012. As of the termination date of February 24, 2012, Petitioner had been away from her job for more than six months, had not been cleared by a physician to do work of any kind, and would not receive a physician’s clearance to work any sooner than May 3, 2012. The City could have consented to carry Petitioner even longer on an unpaid leave of absence, but it was not discriminatory for the City to make the business decision to terminate Petitioner’s employment. Petitioner offered insufficient credible evidence to refute the legitimate, non-discriminatory reason given by the City for the termination of her employment. Petitioner offered insufficient credible evidence that the City's stated reason for the termination of her employment was a pretext for discrimination based on her age, gender, disability, or perceived disability. Petitioner offered insufficient credible evidence that the City discriminated against her because of her age, gender, disability, or perceived disability in violation of section 760.10, Florida Statutes. Petitioner offered insufficient credible evidence that her dismissal from employment was in retaliation for any complaint of discriminatory employment practices that she made while an employee of the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Edgewater did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 30th day of January, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2015.
The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a very well-credentialed, internationally-recognized cancer researcher who is black and a native of Cameroon. He has been granted lawful permanent residence status in the United States (with an EB-1 classification, signifying that he is an alien with "extraordinary ability"). Petitioner received his Doctor of Medicine degree in 1999 from the University of Yaounde I in Cameroon. He spent the next five years as a post-doctoral fellow at the University of Rochester Medical Center in Rochester, New York.3 He worked in the Department of Orthopaedics (under the supervision of Randy N. Rosier, M.D., Ph.D.) for the first two of these five years and the James P. Wilmont Cancer Center (under the supervision of Dr. Rosier and Joseph D. Rosenblatt, M.D.) for the remaining three years. Petitioner enjoyed a considerable amount of independence, and was "very productive," during his time at the University of Rochester Medical Center. In June 2005, Petitioner began working as a post- doctoral associate assigned to the Viral Oncology (VO) program at UM's Sylvester Comprehensive Cancer Center (Sylvester) in Miami, Florida. He remained in this position until his termination (which he claims was discriminatorily motivated) in September 2006. Sylvester "serves as the hub for cancer-related research, diagnosis, and treatment at [UM's] Miller School of Medicine" (Miller). The VO program is administratively housed in the Division of Hematology/Oncology of Miller's Department of Medicine. Dr. Rosenblatt, Petitioner's former supervisor at the University of Rochester Medical Center, is now, and has been at all times material to the instant case, the Chief of the Division of Hematology/Oncology. According to the Sylvester website, the goals of the VO program include: Investigating the mechanisms of oncogenesis and innate immune subversion in viral associated cancers including those that arise in immunocompromised patients. Devising novel and targeted therapeutic and preventive strategies for viral associated malignancies. Implementing basic and clinical international collaborative studies in developing nations that have a high incidence of these tumors. William Harrington, Jr., M.D., is now, and has been at all times material to the instant case, "in charge" of the VO program. Dr. Harrington, who is white, is a 1984 Miller graduate. He has been working for UM since his graduation 24 years ago. For the past 17 or 18 of these years, he has held positions having supervisory authority over other UM employees. As the head of the VO program, Dr. Harrington runs a "small" laboratory (Dr. Harrington's lab) staffed by a post- doctoral associate, lab technicians, and a research nurse (all of whom he directly supervises). Dr. Harrington's lab is a "hundred percent funded by [competitive] peer review grants": four from the National Institutes of Health (NIH); one from the Leukemia Society; and one from the State of Florida. It is "one of the best-funded labs" at UM. In addition to running his lab, Dr. Harrington also sees and treats patients at UM's Jackson Memorial Medical Center (Jackson Memorial). Approximately 95% of his patients are indigent, with a large number of them being of African descent (black). Dr. Harrington "specializes" in viral lymphomas, with a strong emphasis on diseases that occur predominantly in persons of African descent (certain AIDS-related lymphomas, HTLV-related lymphomas, and Burkitt lymphoma). Over the years, Dr. Harrington has had occasion to do work outside the United States, in areas where these diseases are prevalent, including the Afro-Brazilian state of Bahia, where, approximately 12 years ago, he met his wife Tanya, who is of African descent. Dr. Harrington has also "worked with colleagues in Zambia . . . on AIDS-related lymphomas and pediatric Burkitt lymphomas." Approximately seven or eight years ago, Dr. Harrington "sponsored post-doc[toral] trainees from Zambia in his lab." Dr. Harrington was introduced to Petitioner by Dr. Rosenthal. After reviewing Petitioner's "bio-sketch," Dr Harrington interviewed Petitioner and was sufficiently impressed to offer Petitioner an unadvertised post-doctoral position in his lab. Dr. Harrington hired Petitioner because Petitioner had the "skillset" Dr. Harrington was looking for. Dr. Harrington was particularly influenced by Petitioner's background, including publications, in NF-kappaB signaling, which was an "area[] of [Dr. Harrington's] interest." Moreover, Dr. Harrington thought Petitioner was a "smart capable man." At the time he hired Petitioner, Dr. Harrington was aware Petitioner was black and from Cameroon. Neither Petitioner's race, nor his national origin, played any role in Dr. Harrington's hiring decision. As a post-doctoral associate, Petitioner was the "senior lab person" working under Dr. Harrington's supervision. He was expected to assume a "higher level [of responsibility] than other staff personnel in [the] lab . . . in terms of doing a given set of experiments or [other] work." Dr. Harrington and Petitioner initially enjoyed a cordial working relationship. They had "excellent rapport" and even socialized after work hours. At Dr. Harrington's invitation, Petitioner came over to Dr. Harrington's house approximately "every other Friday" and for the Thanksgiving holiday. Although Dr. Harrington did not hire Petitioner specifically to "build[] international research programs," once Petitioner was hired, Dr. Harrington did discuss the matter with Petitioner, and he authorized Petitioner to initiate contact with cancer investigators in Cameroon to explore the possibility of their collaborating with Dr. Harrington on a project involving NF-kappaB signaling and Burkitt lymphoma. After having received Dr. Harrington's authorization, Petitioner "made contact with some of [his] mentors back in Cameroon, all [of whom were] involved in [Cameroon's] national cancer control program." On July 13, 2005, Dr. Harrington himself sent an e- mail to these Cameroonian investigators, which read as follows: Thank you Dr. Mouelsone for your response. I was considering putting together a project on Burkitt lymphomas that would principally be a study on the biology of the tumor in endemic and HIV associated cases. We would collaborate with investigators in Brazil and Africa. The study would be focused on targets that could be exploited in novel therapies as well the role of ebv [Epstein Barr virus] in different types of tumors. We already have IRB approval for collection of residual lymphoma specimens as well as protocols for the processing that would be required. A challenge in any grant is keeping the project focused and attractive scientifically for the reviewers. The participating center would have to have the capability to identify and consent patients as well as processing and storage . . . . Therefore one would need reagents, a research nurse (maybe 50%) salary and liquid nitrogen dewar as well as some support for a PI. Maybe I could send everyone the aims of a recently submitted grant to see if it would be possible. I could send our informed consent document since it broadly covers all viral associated tumors. I am attaching a recent article and I sincerely appreciate your help. I also am a fan of the Cameroon's football team the "indomitable lions." Dr. Harrington ultimately determined to collaborate exclusively with the Brazilian investigators, with whom he had a longstanding professional relationship, and not with the Cameroonian investigators, on this particular project. During the first several months of Petitioner's employment, he engaged in research involving NF-kappaB signaling. He also helped write an article (entitled, "Zidovudine: A Potential Targeted Therapy for Endemic Burkitt Lymphoma") that was published in the East African Medical Journal. When presented with the draft of the article that Petitioner had prepared, Dr. Harrington commented to Petitioner (by e-mail dated July 28, 2005), "[T]his is better than the one I wrote." Petitioner also contributed to the preparation of a successful NIH grant application submitted on September 1, 2005, by Dr. Harrington (as Principal Investigator/Program Director) seeking funding for his lab, as well as for collaborators in Brazil and at the University of North Carolina at Chapel Hill, to "investigate in primary BLs [Burkitt lymphomas] the form of EBV [Epstein Barr virus] latency and its relationship to NF- k[appa]B"; to "determine the susceptibility of primary tumor cell lines to antiviral apoptosis"; and to "investigate commonly available, inexpensive agents that are known to induce the EBV lytic cycle and potentiate phosphorylation of AZT [azidothymidine, also known as Zidovudine]." The grant application was "based on . . . work that had been done [prior] to [Petitioner's coming to work in Dr. Harrington's lab]." The following individuals were listed as the "key personnel" on the grant application: Dr. Harrington; Iguaracyra Araujo, M.D., of Brazil; Jose Barreto, M.D., of Brazil; Carlos Brites, M.D., Ph.D., of Brazil; Dirk Dittmer, Ph.D., of the University of North Carolina at Chapel Hill; and Isildinha Reis, Ph.D., of UM. The following statements were made on the grant application concerning Dr. Reis' and Petitioner's anticipated roles in the proposed project: Isidinha Reis, Ph.D. (Biostatistician) will be in charge of the statistical component of this project including periodic analysis of data pertaining to this grant. She will participate in phone conferences with Ms. Shank and Luz. She will be particularly important for the conduct of this study since she is Brazilian by birth and fluent in Portuguese. 7.5% support is requested. Valentine Andela (Post Doctoral Fellow) will be in charge of all the day-to-day laboratory aspects of Dr. Harrington's component of the project. This includes receipt of isolates shipped from Brazil and then forwarding them to Dr. Dittmer, cell culture, DNA and RNA preparation and hybridization, EMSA and immunoblot analysis, cryopreservation of samples, etc. 50% support is requested. In the fall of 2005, Dr. Harrington discussed with Petitioner an article published in a "science magazine" that reported on Epstein-Barr virus (EBV) microRNAs, which, at the time, was a relatively unexplored area of research and one in which Dr. Harrington "definitely [did] not" have any "expertise." During the discussion, Petitioner expressed an interest in studying EBV microRNAs. Dr. Harrington "agreed [this] would be an interesting project to pursue," and he "thought [Petitioner] could do a good job" on it. With Dr. Harrington's approval, Petitioner thereafter started his research of EBV microRNAs, a project that consumed most of his work time during the remainder of his employment with UM. The project included helping draft a manuscript detailing the findings of the research. The experiments that Petitioner did as part of the project were on tumor samples that had been "collect[ed]" and "intial[ly] analy[zed]" by Brazilian investigators with whom Dr. Harrington had collaborated with in the past. In November 2005, Petitioner advised Dr. Harrington that he was considering participating in a clinical residency program, and Dr. Harrington "agreed to help [Petitioner] out" in any efforts he might make to seek a residency position. At Petitioner's request, Dr. Harrington wrote a letter of reference (dated November 16, 2005), "highly recommending" Petitioner for such a position. Dr. Harrington indicated in his letter, among other things, that in the "relatively brief time" that Petitioner had worked for him, Petitioner had "exceeded [Dr. Harrington's] expectations and made novel findings in the area of lymphoma and Epstein Barr virus." In addition to writing this letter of reference, Dr. Harrington, on Petitioner's behalf, contacted Stephen Symes, M.D., who at the time was the "head of the [Jackson Memorial medical] house staff program." Dr. Symes told Dr. Harrington that the "logical thing for [Petitioner] to [first] do [was] . . . a clinical rotation" at a teaching hospital, such as Jackson Memorial (during which he would act as either an observer or as an actual member of a medical team). Petitioner had planned to participate in a two-week clinical rotation at Jackson Memorial in December 2005, but had to change his plans because, when December came, he was still immersed in the EBV microRNA research project he had undertaken and had no time to do the rotation. Dr. Harrington was pleased with the quality of the work that Petitioner was doing on the project. In an e-mail he sent Petitioner on March 6, 2006, Dr. Harrington stated that he was "really excited about [Petitioner's] work," which he described as "novel and probably the best thing to come out of [his] little lab." On or about March 20, 2006, Dr. Harrington provided Petitioner with his written annual performance evaluation. He gave Petitioner an overall rating of "exceeds standards," with Petitioner receiving an "exceeds" rating in the categories of "Job Knowledge," "Supervision Required," "Quality of Work," "Adaptability," "Customer Service," and "Safety," and a "meets" rating in the category of "Time Management." Dr. Harrington made the following handwritten comment on the evaluation with respect to the latter category: I would like him to maintain more regular hours but his work is outstanding. Dr. Harrington felt compelled to make this comment because, although he "liked the work [Petitioner] was doing," "there were issues [regarding Petitioner's] disappearing for long periods of time [from Dr. Harrington's lab without telling Dr. Harrington where he was] and [Dr. Harrington] thought that this was becoming problematic." These "unexplained absences" from the lab were becoming more frequent and Dr. Harrington felt like Petitioner was "pushing the envelope." The improvements that Dr. Harrington had hoped to see in Petitioner's attendance did not materialize, and the relationship between the two deteriorated precipitously. On March 29, 2006, following a confrontation he had with Dr. Harrington, Petitioner sent an e-mail to Dr. Harrington, in which he advised: I did not mean to be rude this afternoon and you are absolutely right in pointing out that I am tense and consequently reactive. All things considered, I am putting undue pressure on myself. I am pretty much accepted in the Master of Arts in International Administration (MAIA) program at the UM. It is a professional degree program that puts a lot of weight on a practicum of the degree candidate[']s choice. I had proposed to implement the strategy articulated in the attached manuscript, which was previously funded in 2003 by an NCI-UICC grant for international cancer research and technology transfer. I am going to commit[] to the MAIA program, get it done in a year, and then reassess. I can go on to work in international developmental aid or go on to do a residency. If I was pushing for a tenure track faculty position, it is in part because I wanted to pursue the first option, but do it gradually over 3 years under your wing. Of course, I was counting on that plan being in line with your grand scheme, i.e. developing international programs. Dr. Harrington responded that same day by sending Petitioner the following e-mail: Ok I can help you with letters etc. I understand and that sounds like a good program. I want to expand these studies to Africa and hopefully in the future we can work together. I need your help on this paper. I think you have done very nice work. Things are pretty tough in the academic arena these days. A few days later, on April 1, 2006, Dr. Harrington, upset with what he felt was Petitioner's continuing lack of respect for his supervisory authority over the operation of the lab, sent Petitioner an e-mail, in which he stated the following: I have given this some thought and I don't think that this is working out with you. I am tired to see that you have simply disappeared without even a word to me and although you do very nice work it isn't worth it to me at this point. I also did not like the way you simply dismissed the fact that I had to do the work as outlined in the grant. I have tried very hard to go out of my way to accommodate you but at this point I feel that I have no authority at all. I want you to sit down on Monday and give me all the data for this paper, raw and otherwise. I also received all the pictures from Iguarcyra and the tumors are on the way. If you don't want to finish this then I will send everything to [D]irk. It is too bad because there is a lot we could have accomplished. Later that month, on April 28, 2006, reacting to another instance of Petitioner's being away from the lab when he was expecting Petitioner to be there, Dr. Harrington sent the following e-mail to Petitioner: I have been waiting around here to look at the figures. If you don't come in you should call, or if you leave for the majority of the day, you should call. I have spoken to you about this to no avail. You are a smart guy but am sick of this. Finish your paper and find another job. You will have to leave the computer here too. I will not ask for a raise for you nor a faculty position. Dr. Harrington sent Petitioner a follow-up e-mail the next day, which read as follows: I really am disgusted. You have thrown away everything this year, both for you and me. Your unstable behavior makes me question everything you have done also and so I will have to cancel submitting this paper until Lan[4] or JC can repeat some of the work. You are throwing away your tuition benefits also and have adversely affected everyone, most of all yourself. I have contacted the appropriate ones about this. I strongly urge you to do all I have outlined below.[5] I will not consider anything else. In an April 30, 2006, e-mail to Dr. Harrington, Petitioner responded: I will let the facts speak for themselves. Prior to joining your lab, I spent over five years working in a highly interactive and competitive environment. My record is infallible. You have in fact benefited tremendously from my intellect, my experience and especially my poise. I trust you would assemble an ethics committee to probe my work. I expect a letter of termination in due form and I would transfer all of the research material accordingly. This e-mail generated the following response from Dr. Harrington, which was communicated to Petitioner later that day by e-mail: Poise, what a joke. If you walk off with the data and th[]e computer I will call security. The morning of May 2, 2006, Petitioner sent the following e-mail to Dr. Harrington: Dear Dr. Harrington: Per your request, I will transfer everything to Lan no later than next week, Monday the 8th. This was all a set up anyway, to bog me down in the lab. So I would not make a fuss about any of this. I will put this all behind me. Nonetheless, I have backed up every relevant document that exonerates me from any denigration. In a way, I should thank you for throwing me out to the world and bringing me to face my fears. So thank you. Valentine Dr. Harrington replied a little more than a hour later, stating in an e-mail to Petitioner: I have always t[h]ought that you were the smartest person that has worked for me. Your work is really beautiful and I certainly could not have done it. I am very disturbed over this and I don't see why you could not level with me. Your behavior at times was just too much, not your demeanor but the fact that you simply went on mental walkabouts and disappeared. You have to get a grip on your ego and not wear it on your sleeve. I had really thought we could have basically kicked ass in this area but I don't think that you realize the precarious nature of this business and that you have to be careful about straying into something or somebody that will leave you []no[] grant money. Valentine you can ask Joe. I spent most of my time bragging about your work to everyone. If you are smart, which you obviously are, then you don't have to go around telling that to people, they know. The most important thing is that you get along with people and when you would just not show up without even calling it really pissed me off. It was telling me that I am not even worth a phone call. I can be a real asshole, again ask Joe, and I have done myself harm from being so. But like it or not I am a lot older and more senior than you. You will far surpass me in research if you get a grip on your ego. If not there will be an ever shrinking number of people that care. I would like for you to call me on my beeper or cell. Petitioner defended himself in the following manner in an e-mail he sent to Harrington later that morning: You cannot say that I [am] an egomaniac. I give of myself and I give very generously. That is the record I left in Rochester and that is the record I have left in your lab. To say people there will be an ever shrinking number of people who care is again not true. You should know that whenever I call[ed] on a favor from Rochester, for example getting into the . . . MA in Intl Admin [program], the response was immediate and overwhelmingly positive. I never thought I was smart and never said it. This much I know, I work very hard and I have a generous heart and I will not l[]ose my way. Those are all the values I ever had and I will stick to it. God promised the path would be rough, but the landing would be safe. Again, thank you. Valentine. The final e-mail of the morning was sent by Dr. Harrington to Petitioner. In it, Dr. Harrington informed Petitioner: I am trying to get in contact with the [B]razilians and check on the id of the sa[m]ples one final time and I will try to submit the paper this week. The "paper" to which Dr. Harrington was referring in his e-mail was the manuscript (written by both Petitioner and Dr. Harrington) of the EBV microRNA research project Petitioner was spearheading (EBV microRNA Manuscript). On or about May 12, 2006, following an instance of Petitioner's not "com[ing] in [to the lab] nor call[ing] to advise [Dr. Harrington] of [his absence]," Dr. Harrington spoke with Petitioner about his "unexcused absences" and provided him with specific verbal instructions regarding his attendance and use of his work time. In a May 12, 2006, e-mail, Dr. Harrington informed Desiree Uptgrow of Sylvester's human resources office of the talk he had had with Petitioner and the directives he had given him. The e-mail read as follows: I spoke to Mr. Andela regarding his unexcused absences from work. I referred to the recent time on Friday, when he did not come in nor call to advise me of this. I also spoke to him about concentrating on work and not other activities while in the lab. I will not excuse this or any further incidents. He is expected to comply with the following: 1) arrival at work at a reasonable hour, by this I mean between the hours of 9 to 10 am and cessation of work at a reasonable hour by this I mean 5-6 pm. 2) Weekly goals will be outlined by me in terms of expected experiments to be performed (of course results may vary since the nature of research may not be predictable). 3) an attitude of collegiality in that if there is down time for whatever reason help would be offered by him to other lab personnel. 4) no unexplained long absences from the lab during the day. An expected lunch break of an hour is acceptable. Further deviations from the above will result in a second and third entry into his file whereupon he will be subject to dismissal. William Harrington MD As he put it in his testimony at the final hearing, Dr. Harrington "had no problem with [Petitioner's] going somewhere for an hour or going somewhere for a couple of hours and doing something, but [he] had problems with [Petitioner's] simply disappearing and not giving [him] . . . the courtesy of letting [him] know what was going on." On June 1, 2006, Dr. Harrington (as the corresponding author) submitted the EBV microRNA Manuscript (which was entitled, "Targeted Suppression of CXCL11/I-TAC by EBV encoded BHRF1-3 microRNA in EBV related B-Cell Lymphomas" and is hereinafter referred to as the "First Manuscript") to Blood, a medical journal published by the American Society of Hematology. Petitioner was listed as the first author in the manuscript. Among the other individuals given authorship credit were the Brazilian investigators. It was Dr. Harrington's decision to include them. He felt that "they clearly deserved to be co- authors" and that "it would have been unethical to not have included them." Petitioner disagreed with Dr. Harrington's assessment of the Brazilian investigators' entitlement to authorship credit. In a July 17, 2006, decision letter, Blood's associate editor advised Dr. Harrington that the First Manuscript had been evaluated and deemed "not acceptable for publication in Blood." On July 20, 2006, after what he considered to be further instances of insubordinate conduct on Petitioner's part, Dr. Harrington sent an e-mail to Ms. Uptgrow (as a follow-up to the May 12, 2006, e-mail he had previously sent her), in which he stated the following: There have been a couple of recent incidents which I want to submit in writing. Last week Mr. Andela called me and said that his flight from DC was cancelled or overbooked and he would be late. I replied that this was OK but he never called, emailed or showed up to work. Yesterday he came in past 11 am and also did not call. More concerning is that I had asked him to set up an experiment and later asked my lab tech to assist. When I spoke to my tech this morning he told me that Mr. Andela was not doing the experiment because he saw no reason to. I consider this to be insubordination. Later that same day (July 20, 2006), Ms. Uptgrow sent an e-mail to Nicole Lergier and Lynetta Jackson of Miller's human resources office advising of Dr. Harrington's desire for "assist[ance] in the termination of [Petitioner] based on [Petitioner's] continue[d] lack of following instructions " The afternoon of July 24, 2006, Dr. Harrington and Petitioner engaged in the following argumentative e-mail exchange, evidencing the further decline of their relationship: 1:51 p.m. e-mail from Dr. Harrington to Petitioner I asked you to do the bl-8 line and Peterson line. I don't care to hear that you chose not to do them. 2:05 p.m. e-mail from Petitioner to Dr. Harrington Sorry but I don't know what you are talking about - and it is very disconcerting. I told you we had done the BL8 line and you told Lan to send the Peterson line to Dittmer for profiling. That's where we left off on that - this was reiterated at the meeting you convened with Lisa, Lan, Julio and I. 2:10 p.m. e-mail from Dr. Harrington to Petitioner No that is not true. Lan said that you did not want to do another primary and I said repeatedly that I wanted it done. Your problem [V]alentine is that you think that you are in charge, ie I want a tenured position, I don't want to do old things etc. while I have to keep the grant money coming in. I respect your ability to do certain things and you are a s[m]art guy but clearly you would prefer to be autonomous. The question is how do you attain that. 2:44 p.m. e-mail from Petitioner to Dr. Harrington Dr. Harrington- that is hearsay - you and I had this conversation over the BL8 and the P[e]terson and I said the BL8 had been done and I would run the P[e]terson line in parallel with the dicer exp[erimen]t, once I had gotten the conditions right. I don't think I am in charge - and just how could I, when day in and day out you seek to undermine every "independent" effort I make, that's what[']s expected of a post-doctoral fellow... Every independent effort I have led has panned out - not because I am smart but because I put the time and effort to think it through. When I joined your lab, it was on a 1 year stint - and now I am starting on my second year because you[] wanted it that way. I joined your lab to work on NFkappB, which is what you are funded for and what I had some expertise in, but then you had me work on something totally novel - miRNAs - and the work is done. If I asked for a tenure track position - it is because I recognized (or I thought I did) that you needed someone permanent in the lab - furthermore I was investing too much time and effort on the miRNA work... despite my best efforts (which you do not acknowledge) this is not working out. So I am going right back to the drawing board by doing a residency - we had agreed on this back in May that I was taking a month off in August to do a rotation. I am taking off to Europe for a short vacation on the 6th of August to prepare for my 2 week clinical rotation. So to answer your question - I am giving up on any autonomy and I am going right back to doing a residency. 3:02 p.m. e-mail from Dr. Harrington to Petitioner You never told me about vacation time but ok... you said you would be out for aug (without pay) so am I to presume that aug 6th will be your last day? We don't seem to get along and that's that, no hard feelings. 3:09 p.m. e-mail from Petitioner to Dr. Harrington August 5th would be my last day. 3:17 p.m. e-mail from Dr. Harrington to Petitioner And I will try my best to make sure that happens[.] [Up] until the 5th I would appreciate it if you did run Peterson and bl-8 since they will be cleaner than the primaries. Although not obligated to do so, Dr. Harrington agreed to make sure that Petitioner was paid for the two weeks that, according to his July 24, 2006, 2:44 p.m. e-mail to Dr. Harrington, he was going to be spending doing his clinical rotation (after his trip to Europe). Petitioner left Miami on August 5, 2006, and went to Russia to participate in a two-week "short course" for which he received three credits towards his MAIA degree at UM. (He had enrolled in the MAIA degree program earlier that year.) On August 10, 2006, while he was still in Russia, Petitioner sent the following reply to an e-mail he had received from Dr. Harrington "regarding when [his] return date from the 2 week clinical rotation would be": Sorry I missed that - the 8th of September. Thanks. Petitioner returned to Miami from Russia on August 18 or 19, 2006, "exhausted" and "burned out." He stayed home to rest until returning to work on September 8, 2006. He never did the clinical rotation he told Dr. Harrington he was going to do, but he nonetheless was paid by UM (as Dr. Harrington said he would be) for the two weeks he represented he was going to be engaged in this activity. At no time during his absence from work did Petitioner tell Dr. Harrington he was, in fact, not doing a clinical rotation. He concealed this information because he "wanted to avoid a confrontation" with Dr. Harrington. Dr. Harrington, however, was not entirely in the dark about the matter. On August 22, 2006, through e-mail correspondence, he had checked with Dr. Symes to see if Petitioner had "ever showed up for a clinical rotation" at Jackson Memorial and had been told by Dr. Symes that he had "not heard from [Petitioner] at all." When Petitioner returned to work on September 8, 2006, Dr. Harrington asked him for documentation showing that he had done a clinical rotation at Jackson Memorial during the time he had been away. Petitioner told Dr. Harrington that he did not have any such documentation. Dr. Harrington understood Petitioner to "follow[] that up by saying he had done a clinical rotation in Rochester." Dr. Harrington then "asked [Petitioner] for documentation of that clinical rotation," which Petitioner was unable to produce. The conversation ended with Dr. Harrington telling Petitioner to leave the lab and go home, explaining that he would be bringing the matter to the attention of the human resources office. At this point, Dr. Harrington had decided that it was "just impossible to continue the working relationship" he had with Petitioner and that Petitioner had to be terminated. He was convinced that Petitioner had lied to him about doing a clinical rotation and that, by having been absent from work for the two weeks he was supposed to have been doing such a rotation, Petitioner had effectively abandoned his job. Moreover, Dr. Harrington felt that Petitioner had "exploited" him and was continuing to disregard his supervisory authority. Later in the morning on September 8, 2006, Petitioner sent Dr. Harrington the following e-mail: Hi Dr. Harrington This is just written confirmation that you asked me not to resume work today and to stay away until you had convened a meeting with human resources. Thanks Valentine Petitioner never returned to Dr. Harrington's lab. September 8, 2006, was his last day in the "work environment" of the lab. As he had promised he would, Dr. Harrington made contact (by e-mail) with the human resources office. He concluded the e-mail by stating: At this point, under no circumstances will I allow Mr. Andela back into my lab and he is dismissed. Lynetta Jackson of the human resources office responded to Dr. Harrington by sending him, on September 11, 2006, the following e-mail: Dr. Harrington, We're required to follow a process when terminating employees. As we discussed a few weeks ago, all terminations must be approved by Paul Hudgins.[6] I'm still out of the office for medical reasons. This matter is being referred to Nicole Lergier/Karen Stimmel for follow-up. Nicole Lergier was the human resources employee who handled the matter. Ms. Lergier met with just Petitioner on September 14, 2006. At the outset of the meeting, she informed Petitioner that there was a "request for [his] termination" made by Dr. Harrington. She explained that Dr. Harrington "was concerned that [Petitioner] had taken several weeks off to complete a clinical rotation for which [Petitioner] had been paid but [for] which [he] had never registered," and that Dr. Harrington considered Petitioner's conduct to be "job abandonment and . . . grounds for immediate termination." She then went on to tell Petitioner that the purpose of the meeting was to give Petitioner the opportunity, without Dr. Harrington's being present, to give his side of the story and "to bring forward any issues." Petitioner took advantage of this opportunity. He defended himself against the charges Dr. Harrington had made against him and countercharged that Dr. Harrington had been abusive, "manipulative[,] and unprofessional." At no time did Petitioner complain to Ms. Lergier that Dr. Harrington was "prejudiced against [him] because [he was] black or because [he was] from Cameroon." Petitioner indicated to Ms. Lergier that he "had no interest in going back to Dr. Harrington's lab," but that, among other things, he wanted the EBV microRNA Manuscript to be published. On the same day that the meeting took place, Petitioner sent the following e-mail to Ms. Lergier: This is in response to Dr. William J. Harrington's complaint that I abandoned my job functions. The attached e-mails dated Monday 7/24/2006 indicate that I was gone on leave, without pay. What[']s more, there [is] evidence of professional misconduct, manipulation and negative inputs on Dr. Harrington's part. This is not the first instance. The e-mails dated Tuesday 5/2/2006 to 4/28/2006 document another one of many such instances. The time I took off in August was not nearly enough to recover from a tremendously negative work environment where I nonetheless made many positive contributions, in ideas, manuscripts and grants. The facts speak for themselves. At this point, I do not intend to return to work with Dr. Harrington and I trust Human Resources would find a constructive solution to this problem. Approximately an hour later, Petitioner received an e- mail from Dr. Harrington, which read as follows: Your paper will be submitted with you as first author. I have 9 tumor blocks corresponding to the patients in [B]razil and a couple of new ones here that we will assay for eber, cxcl-11 (we got a new ab.) and LMP-1. Lan has repeated the rpa's on the lines (BL-5, R) and several new primaries and they look very good, cleaner than the previous ones. Once I get this done I will send you a draft prior to submission. Dr. Harrington subsequently submitted a revised version of the First Manuscript (Revised Manuscript) to Blood. The Revised Manuscript was "shorter," but not "substantially different from the [First] [M]anuscript." Petitioner was still listed as the first author, which Dr. Harrington "thought was [only] fair since . . . [Petitioner] had done most of the lab work on that article." Dr. Harrington did not believe that, in submitting an "abbreviated" manuscript with Petitioner's name on it as first author, he was doing anything that was contrary to Petitioner's interests or desires. Notwithstanding Dr. Harrington's best efforts, the Revised Manuscript, like the First Manuscript, was rejected for publication in Blood. Although listed as the first author, Petitioner had not "sign[ed] off" on, or even seen, the Revised Manuscript before its submission to Blood. He ultimately received an e- mailed copy from Dr. Harrington. The next day, upon running into Dr. Harrington on the UM campus, Petitioner told him: [Y]ou cannot put my name on a paper that I didn't write. You can't have me as a first author on a manuscript that I didn't sign off on. Take my name off that paper. I have moved on. Dr. Harrington complied with Petitioner's request. Petitioner's name was not on the version of the EBV microRNA Manuscript Dr. Harrington submitted to another medical journal, Cancer Research, "sometime in late 2007," which was accepted for publication and published in March 2008. On or about September 20, 2006, Petitioner was contacted by Ms. Uptgrow and given the option of resigning his position or being terminated. Petitioner told Ms. Uptgrow that he "wasn't going to resign." On September 25, 2006, Dr. Harrington sent Petitioner the following letter, advising Petitioner that his employment was being terminated "effective immediately": As you know, you have been counseled many times regarding your unsatisfactory performance and attendance issues. Unfortunately, these problems persist despite our counseling efforts. There have been several emails and conversations that have taken place, which you were advised that any further incidents would result in additional disciplinary action. Specifically, we had agreed you would take the weeks of August 5, 2006 - August 18, 2006- off for vacation and this would [be] followed by a 2 week clinical rotation[.] [Y]ou notified your supervisor that you would return on September 8, 2006, 3 weeks after completing your vacation. Despite all of the previous warning and effort to work with you on the problems that concerned your supervisor, it has continued. Due to your failure to adhere to University policies and procedures and ongoing problems, you have left us no alternative but to terminate you effective immediately. Any accrued vacation will be paid to you in your final paycheck. You are to return all University property issued to you upon employment to Desiree Uptgrow to expedite the processing of your final check. Please contact Benefit Administration, (305)284-6837, regarding continuation of benefits you may be entitled to. You should receive information regarding COBRA benefits from the Office of Benefits Administration in a separate letter. If you do not receive this letter, please contact the Office of Benefits Administration at (305)243-6835. Dr. Harrington's termination of Petitioner's employment was based solely on what Dr. Harrington perceived to be Petitioner's deficiencies as an employee. Neither Petitioner's race, nor his national origin, played any role in this or any other action Dr. Harrington took affecting Petitioner. On September 29, 2006, four days after his termination, Petitioner sent the following e-mail to Dr. Harrington: Hi Dr. Harrington: Dr. Symes urged me to do a 2 week clinical rotation/observership with Hem/Onc as the department of internal medicine no longer offers this. Would it be possible to do it with you, starting next week, Wednesday the 3rd of October. Thanks for your consideration. On the advice of UM legal counsel, Dr. Harrington did not respond to this e-mail. Instead of seeking other employment following his termination, Petitioner "focused" on completing the requirements to obtain his MAIA degree at UM. In accordance with UM policy, he continued to receive tuition remission benefits for the 2006 fall semester (the semester in which he was terminated), but after that semester, the benefits ceased. Petitioner believes that he has completed the requirements for his MAIA degree and is entitled to receive his diploma and final transcript, which UM has withheld. UM's records, however, reflect otherwise. They reveal that he has not yet received any credit for the Practicum in International Administration (INS 517) course that he needs to obtain his degree. This course involved Petitioner's writing and defending a thesis. In the spring of 2007, while Petitioner was working on his thesis, his car, which was parked on the UM campus, was ticketed by the City of Coral Gables police and subsequently towed by Downtown Towing Company for "safekeeping." After unsuccessfully attempting to retrieve his vehicle, he demanded that UM compensate him for his loss. UM (acting through its Assistant General Counsel, Judd Goldberg, Esquire) and Petitioner engaged in settlement negotiations. At least as early as August 8, 2007, UM insisted, as a condition of its agreement to any settlement, that Petitioner sign a full and general release reading, in pertinent part, as follows: In exchange for the promises which the University makes in this Agreement, Andela agrees to waive voluntarily and knowingly certain rights and claims against the University. . . . . The rights and claims which Andela waives and releases in this Agreement include, to every extent allowed by law, those arising under . . . the Civil Rights Acts of 1866, 1871, and 1964, . . . the Florida Civil Rights Act of 1992 . . . and any amendments to said laws. This is not a complete list, and Andela waives and releases all similar rights and claims under all other federal, state and local discrimination provisions and all other statutory and common law causes of action relating in any way to: (a) Andela's employment or separation from employment with the University which accrued or may have accrued up to the date of execution of this Agreement; and/or (b) Andela's status as a student at the University which accrued or may have accrued up to the date of execution of this Agreement. . . . On September 13, 2007, Petitioner filed his employment discrimination complaint with the FCHR (complaining, for the first time to anyone, that he had been a victim of race and national origin-based discrimination by UM, acting through Dr. Harrington). On September 22, 2007, Petitioner sent the following letter to Mr. Goldberg: I will not surrender my civil rights by signing the full and general release agreement, in order to receive a settlement for my above referenced car that was swindled. Compelling me to surrender my civil rights is an act of retaliation, based on your knowledge of an employment discrimination complaint filed against the University of Miami. As specified on page two-paragraph two- of the attached letter from the Florida Commission on Human Relations (FCHR), "the law prohibits retaliation against any person making a complaint, testifying or participating in an investigation, proceeding, or hearing on an alleged unlawful employment practice." Unless you correct this unlawful act by the end of business day - Monday 24th of October - I will notify the FCHR. Mr. Goldberg responded by sending Petitioner the following letter, dated September 24, 2007: This letter acknowledges receipt of your correspondence of September 22, 2007 addressed to myself and President Shalala. The University does not believe that the settlement and general release agreement is retaliatory. Indeed, the settlement and general release agreement was provided to you before you filed a Charge of Discrimination with the Florida Commission on Human Relations. At this juncture, the University will respond to the Charge of Discrimination filed with the Florida Commission on Human Relations when it is formally advised of the charge by the Commission.[7] If you have any further questions regarding this matter, please call my office directly as it is my office that handles all legal matters for the University. Thank you for your attention to this matter. This letter constitutes communication regarding settlement and cannot be used for any other purpose. At no time has Petitioner filed any employment discrimination complaint with the FCHR alleging that he was retaliated against for having engaged in activity protected by the Florida Civil Rights Act of 1992 (although he did make such allegations in the Petition for Relief he filed in the instant case).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding UM not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 24th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 24th day of July, 2008.
The Issue Whether Petitioner, Craig Tapper, was subjected to a hostile work environment as a result of his race and national origin and retaliation, as alleged in his Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, an black male, born in Jamaica, was employed by Respondent as a department head/stock clerk and is classified as an "associate." He started his employment with Respondent in June 2006 and was "resigned"1 on December 5, 2007. Respondent owns and operates retail grocery stores in Florida. Respondent employs more than 15 people. Respondent provided an Associate Handbook ("Handbook") to Petitioner when he was employed. The Handbook contains a "Policy Statement on Harassment, Including Sexual Harassment" ("Harassment Policy") and information regarding a Formal Complaint Procedure. The pertinent portion of the policy states: Policy Statement on Harassment, Including Sexual Harassment: We at Publix Super Markets share the belief that each of us should be able to work in an environment free of discrimination and any form of harassment, including harassment based on race, color . . . national origin. . . Harassment based on any of these factors will not be tolerated. . . [I]n order for the Company to deal with the problem [of discrimination/harassment], offensive conduct or situations must be reported to the correct person. If you work in a store and want Publix to address your concern, you must report it to your Store Manager, District Manager, or Associate Relations Specialist. . . Formal complaints may also be lodged with the Manager of Equal Employment Opportunity (MEEO) through the Formal Complaint Procedure. If you choose to use these complaint resolution procedures, you'll be treated courteously. Your complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem. Registering the complaint will in no way be used against you, nor will it have adverse effect on your employment. . . . Furthermore, Publix' "Rules of Unacceptable Conduct" prohibit the use of derogatory racial slurs and profanity. The "Rules of Unacceptable Conduct" are posted in the break room and the training room. The Attendance and Punctuality Policy" states, "[a]ssociates who miss 2 entire shifts without calling will be terminated." Associates are required to personally call in and speak with a manager two hours before their scheduled shift if they plan to miss work. On January 29, 2007, Petitioner was scheduled to work, but did not call or show up. As a result, Petitioner was suspended for a week and received a written "Associate Counseling Statement" ("Counseling Statement"), which instructed that he "must call himself when he is not going to be here" and that he "must call in for all shift [sic] he can not fulfill." He was further warned that a failure to improve would result in his discharge. On February 19, 2007, Petitioner was counseled and suspended for one week for "his 6th absent [sic] this 6 month period." Despite this warning, on May 20, 2007, Petitioner was again a "no call-no show." Petitioner was issued a Counseling Statement for failing to call in and speak with a manager before missing his scheduled shift. Petitioner was warned again that he "must call in 2 hours prior to his shift, call in personally and speak to a manager." This Counseling Statement contains the following admonition: "The next occurrence of not following proper procedures will result in a one week suspension. The next occurrence of a no show/no call will result in termination." On August 28, 2007, Dennis Sacca, grocery manager, overheard Petitioner say, "I am tired of being treated like a nigger." Sacca later walked up to Kendall Brown, an African- American grocery clerk, and said, "Go tell the nigger that I sent him some help." Brown relayed the message to Petitioner. Petitioner reported the incident to Ron Brassel, a former store manager and who is African-American, and an investigation was immediately conducted. Brassel informed the district manager who also participated in the investigation. During the investigation, Petitioner wrote a statement for Brassel in which he stated "[a]s far as the incident [sic] myself and Dennis sat down and spoke about the statement he made [and] we both worked it out. I would like very much for this to go no further than it being documented, I don't want Dennis fired, transferred, demoted or any action being taken against him on my behalf. As I said we both worked it out, he made a mistake and he already said he was sorry for saying it; I forgave him and we [sic] back to business." (Emphasis in original). Despite Petitioner's written statement requesting that Sacca not be disciplined, on September 26, 2007, Dwayne Bryant, district manager, suspended Sacca for one week. Bryant also reviewed Publix' Harassment Policy with Sacca and issued Sacca a written Counseling Statement warning Sacca that the next violation of Publix' Harassment Policy would "result in further disciplinary action such as removal from management or termination . . ." Petitioner never heard Sacca use the word "nigger" again. Petitioner was also given a Counseling Statement for using the word "nigger." In the "Associate Comments" section of the Counseling Statement, which is where the associate has the opportunity to note their disagreement with the counseling, there is no statement denying that Petitioner used the word "nigger." Several employees, including other African-American associates, have heard Petitioner use the word "nigger" on various occasions. Rentia Dawsey was employed at the same store as an assistant customer service manager. Dawsey, who is African-American, heard Petitioner used the word "nigger" at the store frequently. She specifically remembered an incident where she asked an associate to check with the store manager before she marked anything down, and Petitioner said, "[w]hat, you don't trust the nigger?" Brown, who worked with Petitioner, heard Petitioner say in the back room, "nigger, what's up" or "nigger this." Ron Calkins, grocery manager and Petitioner's direct supervisor, remembers overhearing Petitioner in the cooler saying, "he was nothing but the store nigger." Calkins verbally counseled Petitioner warning him that he could not use that language as it may be offensive to customers who overhear him. Petitioner claims that after Sacca was suspended, Calkins and Bowles, another employee, began harassing him, because they were unhappy with what had happened to Sacca. Petitioner failed to utilize the established complaint procedures regarding this alleged harassment. No other employee confirms these allegations; in fact, they testified that they never heard Bowles or Calkins say anything derogatory toward Petitioner or behave any differently toward him after the incident with Sacca. Petitioner's allegation of the harassment by Calkins and Bowles is not deemed credible. There is no credible evidence of discrimination based on national origin. In October of 2007, Kris Kolczynski became the new store manager. On Friday, November 30, 2007, Petitioner was detained and taken to the Orange County Jail for matters unrelated to his employment. On the morning of December 2, 2007, Kolczynski was notified by another employee that Petitioner did not show up for work, because he was in jail. Later that day, a woman, apparently Petitioner's girlfriend, came to the store and informed Kolczynski that Petitioner would not be coming in. Petitioner failed to call in and was absent again for his scheduled shift on December 3, 2007. Accordingly, Kolczynski called Tammie Taylor in Human Resources that same day to explain that Petitioner had been a "no call-no show." Taylor is a regional retail associate relations specialist who provides employment advice to management employees. Taylor informed Kolczynski that the standard practice within is that if an employee does not come to work for three consecutive days, they are "resigned." Accordingly, Taylor advised Kolczynski that if Petitioner did not show for a third consecutive shift "to resign him" for job abandonment. Taylor advised Kolczynski to resign Petitioner, rather than terminate him so that Petitioner would be eligible for rehire at other Publix stores. Associates, who are terminated, are not eligible for rehire at Publix for a year. On December 4, 2007, Petitioner was scheduled to begin work at 7:00 a.m.; however, he did not call in until 11:00 a.m., four hours after his scheduled shift. This was a "no call-no show" according to Publix' policy, which requires associates to call in two hours before their scheduled shift. Because Petitioner was a "no call-no show" for three consecutive days, Kolczynski followed Taylor's recommendation and "resigned" Petitioner's employment. Petitioner claims that he attempted to call Publix twice from the jail, but the store would not accept collect calls. Contrary to Petitioner's allegations, there is no written or even unwritten policy prohibiting accepting collect calls. When Petitioner contacted Kolczynski, he was informed that his services were no longer needed at Publix and that he was considered "resigned" because he failed to call in and personally inform a manager that he would miss his scheduled shifts. Subsequently, Petitioner contacted Taylor. Taylor informed Petitioner again that he was "resigned" for failing to call in or show up for work for three consecutive days. Kolczynski received calls from about two or three Publix store managers regarding whether Petitioner was "rehirable." Kolczynski informed them that Petitioner was resigned for job abandonment for failing to show up to work for three consecutive days, but that he was eligible for rehire. Kolczynski did not mention anything about the Sacca incident, and he did not tell them not to hire Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 15th day of December, 2008, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008.
The Issue Whether Respondent, Fort Walton Beach Medical Center (FWBMC), engaged in employment discrimination and, thus, violated the Florida Civil Rights Act(FCRA), section 760.10, et seq., Florida Statutes, by: (a) failing to accommodate Petitioner, Jennifer L. Landress, because of her alleged disability; (b) subjecting Ms. Landress to a hostile work environment on the basis of her sex; (c) constructively discharging Ms. Landress from employment; and (d) retaliating against Ms. Landress, and, if so, the appropriate penalty.
Findings Of Fact FWBMC hired Ms. Landress on October 31, 2005, and employed her for approximately 14 years as a Cardiovascular Services Specialist. Ms. Landress resigned her employment with FWBMC on October 4, 2019. During her employment with FWBMC, Ms. Landress reported to either Ms. Ristom, Vice President of Quality and Risk Management, or Rob Grant, the former Director of Cardiovascular Services. Between August 30, 2018, and October 4, 2019, FWBMC also employed Ms. Sanders, Human Resources Business Partner, and Ms. Clark, Cardiovascular Tech. FWBMC never employed Dr. Al-Dehneh (or the other physicians who testified at the final hearing—Dr. Sandwith and Dr. Chen). Dr. Al-Dehneh has privileges to use FWBMC to provide services to the patients who come to FWBMC to receive care. Neither Dr. Al-Dehneh nor any of the physicians who testified at the final hearing were supervisors of Ms. Landress. Further, Dr. Al-Dehneh: never had a role in Ms. Landress’s discipline or schedule; never evaluated her performance; and did not exercise any control over Ms. Landress or affect the terms or conditions of her employment with FWBMC. FWBMC’s Policies Concerning Discrimination and Sexual Harassment FWBMC has a policy entitled “Equal Employment Opportunity/Harassment,” which is included in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Equal Employment Opportunity/Harassment” policy states, in part: Equal employment opportunities are provided to all employees and applicants for employment without regard to race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, genetic information, or protected veteran status with applicable federal, state and local laws. This policy applies to all terms and conditions of employment, including, but not limited to, hiring, placement, promotion, termination, layoff, transfer, leaves of absence, compensation and training. * * * Any form of unlawful employee harassment based on race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, protected veteran status or any other status in any group protected by federal, state or local law is strictly prohibited. Improper interference with the ability of employees to perform their expected job duties is not tolerated. Each member of management is responsible for creating an atmosphere free of discrimination and harassment, sexual or otherwise. Further, employees are responsible for respecting the rights of their co- workers. The following is prohibited: Unwelcome sexual advances, requests for sexual favors, and all other verbal or physical conduct of a sexual or otherwise offensive nature …. Behaviors that engender a hostile or offensive work environment will not be tolerated. These behaviors may include, but are not limited to, offensive comments, jokes, innuendos and other sexually oriented or culturally insensitive/inappropriate statements, printed material, material distributed through electronic media or items posted on walls or bulletin boards. FWBMC also has a policy entitled “Complaint Procedures,” which is contained in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Complaint Procedures” policy states, in part: If you experience any job-related harassment based on race, national origin, religion, gender, gender identity, color, disability, age or other factor prohibited by federal, state or local statute, or you believe you have been treated in an unlawful, discriminatory manner, promptly report the incident to your manager or Human Resources, who will investigate the matter and take appropriate action. If you believe it would be inappropriate to discuss the matter with your manager or Human Resources, you may bypass your manager or Human Resources and report it directly for investigation at The Ethics Line at [phone number]. Ms. Landress testified that she received a copy of the employee handbook, read the policies contained in it—including the policy concerning “Equal Employment Opportunity/Harassment” and “Complaint Procedures”—and knew of and utilized them. Ms. Sanders testified that if FWBMC, after investigation by its human resources department, substantiates a claim of harassment or discrimination by a physician, it would provide its investigative findings to the medical staff office, who would then refer the physician to a peer review process that could culminate in an appropriate action with respect to that physician’s hospital privileges. The undisputed evidence at the final hearing revealed that Ms. Landress reported to FWBMC’s human resources department that she was subjected to discrimination and harassment in August 2018, and again in March 2019. Allegations of Harassment and Hostile Work Environment Ms. Landress testified that Dr. Al-Dehneh began sexually harassing her starting in 2013. On August 30, 2018, she met with Ms. Sanders and Ms. Ristom and discussed this allegation. Ms. Sanders testified of the allegations made by Ms. Landress at the August 30, 2018, meeting: That Dr. Al-Dehneh had asked Rob to find women for him and to get Ms. Landress to sleep with him. She also indicated that Dr. Al-Dehneh was listening to her conversations via some sort of recording or monitoring device in her computer. She felt that Dr. Al-Dehneh had bugged her home through Siri and had accessed her medical records here at the facility. She was afraid for her life and had a gun. She also felt that Dr. Al-Dehneh was watching her home and that she told us a story about a lady on a bike who said that she was dead to her. She was afraid to go to the police about Dr. Al-Dehneh because she had been told that he was a mobster. And then she did admit to us at one point that she had started developing feelings for Dr. Al-Dehneh. Ms. Ristom also testified concerning the allegations made by Ms. Landress at the August 30, 2018, meeting: She said that Dr. Al-Dehneh had said to her to let him know when she was ready to get married. She said that Rob was tasked with getting women and obtaining sex for Dr. Al-Dehneh. And, you know, during that time Jennifer told me that – told Julie Sanders and I that she had started developing feelings for him, for Dr. Al-Dehneh. And in addition, she felt like her neighbor was watching her and providing information back to Dr. Al-Dehneh about her activities at home. Also, she said that she was afraid to report him because she felt like she – she understood him to be a mobster. She said he was listening to her through a listening device when she was at home through, like, a Siri, a radio kind of device because he would say things that he would only know if he was able to hear her at home. She told us about a heavyset lady on a bicycle who told her that she was a dead lady, that Jennifer was a dead lady, but that that woman was not going to be the one to kill her because Jennifer had been nice to her. She said that she was afraid to go to the police because she believed Dr. Al-Dehneh to be a mobster and that he owned the police and the hospital as well. She said that she was defending herself – felt like she needed to defend herself and had been carrying a gun and keeping it on her nightstand as well. She told us that she hadn’t slept in months, that she was taking medication to help her but that she was having difficulty concentrating. The testimony of Ms. Landress more or less confirmed that she made those allegations that Ms. Sanders and Ms. Ristom testified were made at the August 30, 2018, meeting, and that those allegations formed the basis for her Petition for Relief. She added that Dr. Al-Dehneh “constantly” harassed her, that she believed he started a rumor at the hospital that she had herpes, and that he had her “followed” to a local mall. Ms. Landress denied that she had romantic feelings for Dr. Al-Dehneh, but stated that she “had a great working relationship with him for a long time.” Dr. Al-Dehneh testified and denied all of Ms. Landress’s allegations, including: asking Ms. Landress to let him know when she was ready to get married; offering to “buy” Ms. Landress from her husband; threatening to have Ms. Landress fired; having Ms. Landress followed; putting a “hit” out on Ms. Landress; making comments about Ms. Landress to other physicians; spreading a rumor that Ms. Landress had herpes; calling Ms. Landress’s treating physician, Dr. Chen, for information about her; and accessing Ms. Landress’s medical records. According to Ms. Landress, Dr. Sandwith and Ms. Park were witnesses who could corroborate many of her allegations concerning Dr. Al-Dehneh. Both denied each and every allegation. Dr. Sandwith testified that he never saw Ms. Landress and Dr. Al-Dehneh together; denied talking to Dr. Al-Dehneh about Ms. Landress; denied ever seeing or hearing Dr. Al-Dehneh harass or act inappropriately with Ms. Landress or any other hospital staff; and denied hearing rumors concerning Ms. Landress, Dr. Al-Dehneh, their alleged relationship, or that Ms. Landress had herpes. Ms. Park, who worked with Ms. Landress: testified that she never heard any rumors that Dr. Al-Dehneh was having sexual relationships with other women; denied witnessing Dr. Al-Dehneh tell Ms. Landress that he was going to call Ms. Landress’s husband and offer $5,000 for her; denied talking with Ms. Landress about being sexually harassed; denied hearing rumors about Ms. Landress and Dr. Al-Dehneh; denied hearing rumors that Ms. Landress had herpes; and denied telling Ms. Landress to stay away from Dr. Al-Dehneh. According to Ms. Landress, she also discussed her allegations of sexual harassment with her orthopedic physician, Dr. Chen, on numerous occasions. Dr. Chen testified that during one of Ms. Landress’s appointments, I recall you telling me just occurrences at home, of what happened in the workplace between yourself and a certain physician on staff at the – at the Walton Beach Medical Center. Yeah, and there was situations or there were occurrences that were – upsetting to you and they were providing some sorts of distress. He further testified that Ms. Landress “spoke … about the herpes.” Dr. Chen testified that he may have heard FWBMC staff discussing the alleged herpes rumor, but could not recall from whom he heard those rumors, and admitted that the rumors could have come from Ms. Landress herself. Dr. Chen testified that he never witnessed Dr. Al-Dehneh acting inappropriately towards Ms. Landress, and that he never heard any other physician at FWBMC discuss any rumors concerning Ms. Landress or Dr. Al-Dehneh. FWBMC Investigation of Complaint of Harassment and Hostile Work Environment At the conclusion of the August 30, 2018, meeting, Ms. Sanders immediately investigated Ms. Landress’s claims by interviewing Dr. Al-Dehneh that same day, and by interviewing other employees who could potentially substantiate Ms. Landress’s claims. However, Ms. Sanders was unable to find any witness who corroborated any of Ms. Landress’s allegations. Ms. Sanders testified, as part of her investigation, that she determined that Dr. Al-Dehneh did not have any remote access or log-in capabilities to access Ms. Landress’s computer. Ms. Sanders further testified, as part of the investigation, that she confirmed that Dr. Al-Dehneh never had access, nor tried to access, Ms. Landress’s medical records. During the investigation, Ms. Ristom testified that she offered to move Ms. Landress’s office to distance her from the individuals allegedly involved, including Dr. Al-Dehneh. Ms. Landress declined this offer. Ms. Sanders completed her investigation of Ms. Landress’s claims of sexual harassment and hostile work environment on September 18, 2018, and informed Ms. Landress that FWBMC could not substantiate her claims. Subsequent Events On September 20, 2018, Ms. Landress suffered an anxiety attack and went home from work early. When Ms. Sanders and Ms. Ristom learned of the anxiety attack, they attempted to speak with Ms. Landress in her office and told her to take the weekend off to deal with her anxiety. Both Ms. Sanders and Ms. Ristom testified that Landress did not attribute her anxiety attack to the alleged past sexual harassment incidents with Dr. Al-Dehneh, nor any new incidents of harassment. Ms. Landress’s testimony concerning the anxiety attack and subsequent leave was as follows: Predominately because I really wanted to come home and take medication because I couldn’t stand – I – I just couldn’t get past people in the hospital constantly talking about me having herpes. I mean, it’s kind of like if you were walking in the building and that’s all you heard, you want to get out of there. As previously noted, the FWBMC investigation did not substantiate Ms. Landress’s allegation concerning hospital rumors that she had herpes. Further, there was no testimony or evidence presented at the final hearing, outside of Ms. Landress’s testimony, that confirmed this allegation. Ms. Landress soon returned to work and did not report another incident of harassment until March 2019. On March 1, 2019, Ms. Landress reported that a nurse practitioner, who she claimed worked for Dr. Al-Dehneh, took a photo of Ms. Landress on her cellphone when she walked by Ms. Landress’s office. Ms. Landress testified that she “assumed” the nurse practitioner took the photo for Dr. Al-Dehneh. Ms. Landress further testified that she never saw the photo. Ms. Ristom and Ms. Sanders met with Ms. Landress concerning this allegation, and Ms. Sanders investigated it. Ultimately, FWBMC was unable to substantiate this claim or that she was being harassed by Dr. Al-Dehneh or his nurse practitioner. Ms. Landress did not report any other incidents of harassment after March 1, 2019. Leave(s) of Absence FWBMC approved Ms. Landress for a paid leave of absence from June 10, 2019, until she resigned on October 4, 2019. FWBMC granted this leave for two separate reasons: for an orthopedic condition, and for a mental health condition. Initially, Ms. Landress was placed on leave for her claims of stress, anxiety, and post traumatic stress disorder related to the alleged harassment. Then, on September 9, 2019, Ms. Landress submitted a separate claim because of pain in her right elbow. Dr. Chen, Ms. Landress’s treating orthopedic physician, informed FWBMC that her anticipated return work date was October 7, 2019, with restrictions, such as “no repetitive use of right arm to include typing, mouse use, [and] writing.” After Dr. Chen cleared Ms. Landress to return to work, with restrictions, Ms. Sanders reminded Ms. Landress that she could not return until her mental health counselor also cleared her. Ms. Landress’s mental health counselor never cleared her to return to work. In July 2019—during her leave of absence for a mental health condition—Ms. Landress requested, to Ms. Ristom, the opportunity to work from home. FWBMC denied Ms. Landress’s accommodation request; Ms. Sanders testified: At that time we weren’t able to accommodate the work from home request. There was concerns around protecting patient medical records and her ability to work with the staff and the physicians when she needed to ask questions. On September 20, 2019, while Ms. Landress remained on leave, Ms. Ristom received an email from Q-Centrix, a third-party data management provider that collaborates with healthcare providers, such as FWBMC. The September 30, 2019, email requested that FWBMC terminate Ms. Landress as an employee so that Q-Centrix could employ Ms. Landress in a full-time position. Ms. Ristom forwarded this email to Ms. Sanders to investigate and did not reply to the September 20, 2019, email from Q-Centrix until FWBMC could confirm from Ms. Landress that it was her intention to resign her position with FWBMC. On September 27, 2019, Q-Centrix emailed another request to FWBMC to terminate Ms. Landress. Ms. Sanders testified that she spoke with Ms. Landress about this request. On October 4, 2019, Ms. Landress—who still had not received clearance to return to work at FWBMC from her mental health counselor— submitted a letter of resignation to Ms. Sanders. Her letter of resignation stated that she and her mental health counselor agreed that her “PTSD is too great to return.” Her letter further stated that because FWBMC denied her request to work from home, she had accepted a position with “another company.” The October 4, 2019, letter of resignation attached four additional pages of what Ms. Landress contends were the events that led her to resign. The first page listed the allegations of sexual harassment by Dr. Al-Dehneh that Ms. Landress discussed with Ms. Sanders and Ms. Ristom during the August 30, 2018, meeting. The remaining three pages listed various allegations that Ms. Landress did not report to FWBMC and did not include in her charge of discrimination with FCHR. Findings of Ultimate Fact Ms. Landress presented no persuasive evidence that FWBMC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by sex-based or disability-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sex-based or disability-based discrimination. Ms. Landress presented no persuasive evidence that FWBMC’s actions subjected her to harassment based on sex. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sexual harassment. Ms. Landress presented no persuasive evidence that FWBMC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Landress presented no persuasive evidence that FWBMC’s actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of hostile work environment. Finally, Ms. Landress presented no persuasive evidence that her working conditions at FWBMC were so intolerable that a reasonable person in her condition would have been compelled to resign. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of constructive discharge.
Conclusions For Petitioner: Jennifer L. Landress 7758 Ramona Drive Navarre, Florida 32566 For Respondents: Cymoril M. White, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Jennifer L. Landress’s Petition for Relief. DONE AND ENTERED this 29th day of December, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Tracey K. Jaensch, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 Jennifer Lynn Landress 7758 Ramona Drive Navarre, Florida 32566 Cymoril M. White, Esquire Ford & Harrison, LLP 101 East Kennedy Boulevard Suite 900 Tampa, Florida 33602
The Issue Whether Respondent committed an unfair employment practice by discriminating against Petitioner on the basis of race, in violation of chapter 760, Florida Statutes (2012), and Title VII of the Civil Rights Act.
Findings Of Fact Mr. Nepton is a Hispanic man who worked as a collector for CCS from November, 2011, to February, 2012. CCS is a collection agency that employs approximately 80 collectors, who are divided into departments based on the different accounts they service. Mr. Nepton was originally hired to work under the supervision of Julio Castellon, and then was transferred to a unit supervised by Danielle Santilli. All of the work collectors perform is via telephone; persons who have outstanding bills are called in order to attempt collection of the debt. During his training in Ms. Santilli's department, he received most of his training from Ms. Santilli. According to Mr. Nepton, during these training sessions, Ms. Santilli made derogatory comments about Hispanic people. If the person being called was Hispanic, she would mention that Hispanic people were stupid, dumb, and never paid their bills. Mr. Nepton claims that the comments were made throughout his entire training, which lasted approximately one month. He claims that he reported his dislike of the derogatory comments to Ariel Castellon, a supervisor. Ms. Santilli testified, and denied ever making any derogatory or inappropriate remarks about Hispanics. Mr. Castellon also denied any knowledge of Ms. Santilli making any such remarks, and testified that Mr. Nepton never complained of any such comments while he worked at CCS. Lori French testified that in her capacity as the Human Resources Director, she never received any type of complaint regarding Ms. Santilli from any employee. The undersigned credits the testimony of the CCS employees, finding it consistent and credible in light of the scant evidence produced by Mr. Nepton. Mr. Nepton did not produce a single witness who could corroborate his testimony, despite the fact that the collectors worked in an open area, in close proximity to each other. The employee handbook instructed employees to report any workplace harassment of any type with the Human Resources Department. Mr. Nepton never filed such a complaint with the Human Resources Department. On February 1, 2012, Mr. Nepton received a call from a patient of a hospital inquiring as to whether the account was paid in full. Mr. Nepton requested the patient's date of birth, but the patient asked why that information was necessary. Mr. Nepton raised his voice and became argumentative with the patient. When Mr. Nepton was asked about the phone call by his supervisor, he became argumentative in the presence of the other collectors. On February 2, 2012, Mr. Nepton met with management regarding the incident on the previous day. He became agitated, raised his voice, and pointed his finger in the supervisor's face. Mr. Nepton, who was on probationary status, was discharged from his employment on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 19th day of December, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2012.
