The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder." Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that: Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age. Respondent did not fail to "promote" Petitioner. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics department, given certain assumptions. Assuming a total store sales volume of $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 22nd day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3 (in part), 4, 5, 6 (in part), 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53. Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41. COPIES FURNISHED: Joyce C. Hallowell 1498 Beche Street, S.E. Palm Bay, Florida 32909 Carlos J. Burruezo, Esquire 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Petitioner, Jackie Kilpatrick, worked for Respondent, Howard Johnson Company, for approximately eighteen years in the capacity of waitress. Petitioner is a black woman whose birth date was February 10, 1946. Kilpatrick in the relevant time period worked the initial shift of a three shift work cycle in the restaurant which is located on West Tennessee Street, Tallahassee, Florida. That shift was the 6 A.M. to 3 P.M. morning cycle. Petitioner was one of several waitresses working that shift all of whom had long-standing service with Howard Johnson Company. Petitioner was the only black waitress; however, the cook on that shift was also black. As an employee of Howard Johnson, Petitioner enjoyed a good reputation among her fellow workers and customers of the restaurant with the exception of one customer, in incident which will be subsequently discussed. In early 1982, a meeting was held in the Howard Johnson restaurant in which the Petitioner indicated that she felt the restaurant manager, a Ms. Williams, gave preferential treatment to a white employee. The District Manager for Howard Johnson, Ramon Jimenez, was involved in the meeting and was left with an unfavorable impression of the Petitioner's conduct related to the remarks made to Ms. Williams. Shortly thereafter, Ms. Williams was replaced as the store manager for the Howard Johnson, West Tennessee restaurant. Her replacement, Lionel Robbins, felt that the management of the subject restaurant under the direction of Ms. Williams had not been acceptable and he set about his management task by informing the waitresses on the first shift that he was not there to be their friend. He stated that he was there to, in effect, clean up the operation. Making known his sentiments, he on a number, of occasions indicated to those waitresses, to include the Petitioner, in individual conversations with those employees, that "You can't teach an old dog new tricks". He had mentioned to Mary Mills, a waitress in the first shift, with total service of 25 years with Howard Johnson, that he was there to get rid of people on the first shift. Robbins constantly pressured the first shift waitresses on the question of their performance. He reduced their work hours and assigned more available work hours to new waitresses who he had hired. The new waitresses were hired after Petitioner was dismissed from her employment. Those new waitresses were somewhat younger than the waitresses on the first shift. The original waitresses on the first shift were from 35 to 55 years of age and the new waitresses who were hired were 18 to 23 years of age. During Robbins' time as store manager, in addition to Petitioner, he fired Bernice Johnson, a white waitress, of 16 years service with Howard Johnson who had been employed on the first shift with Kilpatrick. Bernice Johnson's dismissal was within four weeks of Robbins assignment as restaurant manager. Robbins' treatment of the Petitioner was provocative. This aura of provocation commenced from the first day that Robbins met the Petitioner. On that occasion, which took place in the restaurant on March 25, 1982, Robbins witnessed a disciplinary conference between Jimenez and Kilpatrick complaint had been made by a Mrs. DeCarlo, the owner of a privately run Howard Johnson motel operation adjacent to the restaurant, and this was the subject of the disciplinary conference. DeCarlo indicated that the Petitioner would not serve her when DeCarlo came to the restaurant. On the date of the conference Jimenez had prepared the employee reprimand which is Respondent's exhibit number one admitted into evidence, prior to the conference. He presented it to Kilpatrick and indicated to her that it was her responsibility to serve Mrs. DeCarlo or any patron, regardless of the desires of the employee waitress. Kilpatrick indicated that she surmised that DeCarlo really did not wish to be served by her. The conversation became somewhat heated and Robbins interceded and indicated that the Petitioner might wish to transfer to another Howard Johnson restaurant in Tallahassee, Florida. The suggestion was not well received by the Petitioner, in that she indicated an unwillingness to accept a transfer. Robbins indicated that if the Petitioner could not get along with Jimenez, who was Robbins superior, then she was going to have an attitude problem toward Robbins. He suggested the move to the Apalachee Parkway restaurant in Tallahassee, because he felt there was already a personality conflict developing. Petitioner stated that she felt that Robbins wanted to remove her because he was prejudiced. Eventually Robbins talked about the possible termination of the Petitioner's employment. The matter was finally resolved following a discussion with another official within Howard Johnson Company, a George Gover, by telephone call in which it was decided that the reprimand would stand, but the Petitioner would be allowed to continue her employment. From the point of this encounter on March 25, 1982, until the Petitioner's dismissal on April 27, 1982, the working relationship between Robbins and the Petitioner was strained. Between the time of the March 25, 1982 incident, in which the Petitioner was reprimanded, and April 27, 1982, Petitioner and other waitress employees in the first shift were the subject of continuing criticisms by Robbins. Robbins had the impression that Kilpatrick was "too set in her ways" and would not cooperate with his management scheme. 0n the morning of April 7, 1982, Petitioner had to make a number of adjustments in the station where she serves patrons because of oversights of the prior shift of waitresses. She had concluded this activity when Robbins arrived around 8 AM. He observed the "set up" of the tables and found them to be lacking, in his estimation. One matter that struck his eye was the fact that the silverware on one of the napkins was "kind of astray". He spoke first with the waitress Donna Cooper who referred him to the Petitioner. Petitioner indicated that the problem was one related to the prior shift to which the manager, Robbins, retorted that the Petitioner was responsible. An argument ensued between the Petitioner and Robbins and they retired to Robbins office which was in the area of the kitchen. While in the kitchen Petitioner kept referring to the fact that the problems in the restaurant were not those caused by the shift on which she worked. Robbins was insisting that the problems were related to the overall operation. In the course of this conversation, a discussion was entered into related to a reprimand which the Petitioner had received, along with other waitresses, related to the sufficiency of the guest checks as to errors in computations. A copy of that reprimand may be found as Respondent's exhibit's number two admitted into evidence. Petitioner did not wish to sign the written reprimand although she acknowledged making mistakes. She remarked that no one was perfect and Robbins stated that she would have to come closer to his standards of performance. Robbins then asked the Petitioner to transfer from the restaurant and she declined. Robbins then indicated that he was doing to reprimand her for the events of that morning. Her response was that if he reprimanded her that he might as well take her off the schedule, meaning remove her from the shift. In return Robbins struck her name from the work schedule and began calculating her final pay and told the Petitioner that she was discharged. The basis of the discharge was related to the impression by Robbins that the Petitioner was insubordinate. Prior to the dismissal or discharge, in addition to the reprimand related to the dining room table setting, a reprimand for insubordination was presented to the Petitioner. She refused to sign this latter document. A copy of that reprimand may be found as Respondent's exhibit number three admitted into evidence. At the time of her discharge the Petitioner was working 34-35 house a week at a rate of $2.01 per hour together with $35.32 tips per week. Since her discharge the Petitioner has attempted to find work by checking with the State Employment Agency; the local School Board; Rose Printing; with a gentlemen named Holiday, related to custodial work; with a person Joe Williams and another individual who works at Morrisons Cafeteria. These efforts were not successful. Petitioner has not pursued the idea of gaining work as a waitress in view of her desire to participate in church work on each Sunday. Petitioner does not wish to work in any Howard Johnson restaurant other than Tennessee Street, Tallahassee, and specifically would not wish to work in the Apalachee Parkway restaurant in Tallahassee, Florida. Furthermore, the Petitioner does not wish to work at the Tennessee Street restaurant if Lionel Robbins remains as manager. At the point of final hearing, Robbins was still serving as manager of the Tennessee Street restaurant. Petitioner has been unemployed since the time of her dismissal from her job at Howard Johnson restaurant.
Findings Of Fact By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner. On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell. On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures. Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant. Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc. Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500. RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1982. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Douglas Newell c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mt. Key, Inc. c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Steak N Shake, discriminated against Petitioner, Western Ulysse, on the basis of his national origin (Haitian), or race (black), in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black man, born in Haiti. He was hired by Steak N Shake on April 26, 1998, as a production worker and cook. He was later promoted to a manager position at Store No. 281 in Lake Buena Vista. He worked at that store for about eight years and then transferred to Store No. 280 on West Colonial Drive in Orlando (the "Store") on an unspecified date. The general manager at the Store was Judith Freeman, a white female. There was one other manager at the store, Ilia Velez, a Hispanic woman.1/ Petitioner's duties as manager at the Store included providing good service to customers, maintaining an appropriate number of employees each day, ordering food and other supplies for the Store, and ensuring cleanliness and orderliness at the Store. It was also the duty of managers to make bank deposits of daily receipts. Petitioner did not have an exact time for starting work each day, but said he normally started at about noon for the "day shift." Each and every day, managers at the Store would complete a Daily Cash to Account for Form (the "TAF Form"), reflecting the amount of money collected on each of the three daily shifts. The first shift was late night/early morning; the second shift was the day shift; and the third shift was evening. As day-shift manager, Petitioner would sign the TAF Form for receipts from the night shift. It was then incumbent upon him to deposit the collected monies at the bank. A TAF Form was to be signed by two individuals, one of whom (generally a manager) would indicate by his/her signature that they would be responsible for depositing the receipts. According to Steak N Shake policy, deposits had to be made at the bank by a manager "and one other Steak N Shake employee. NO ONE GOES TO THE BANK ALONE." That policy was in place at the Store when Petitioner served as manager. However, it was common practice at the Store for Petitioner or another manager to go to the bank alone. Petitioner knew the policy and knew that his employment could be terminated for violating the policy. He explained that sometimes on first shift there were only two people at the store in the morning, so he had to go to the bank alone. Steak N Shake policies allow for a police officer to substitute as one of the two required persons. Further, an employee who cannot comply with the policy is supposed to contact the district manager as soon as possible. Nonetheless, the policy was routinely ignored by managers at the Store during the 2011 time-frame. It was also policy for the bank deposit to be made before 11:00 a.m. for the previous night's receipts. Petitioner did not explain how he complied with that requirement when he normally arrived at work at noon. He apparently worked earlier shifts some days and day shifts other days, but there is insufficient evidence in the record to substantiate that presumption. On May 24, 2011, however, Petitioner testified that he arrived at work around 7:00 a.m. At approximately 10:41 a.m., Petitioner signed the TAF Form from the previous day, indicating a deposit amount of $770.47 (the "Deposit"). Petitioner signed the TAF Form on the line of the form designated "Witnessed By" when, in fact, he, as manager, should have signed on the line designated "Deposited By." On this particular form, it appears the manager and the other employee signed on the wrong lines. Regardless of that scrivener's error, Petitioner became responsible for taking the Deposit to the bank once he signed the TAF Form. Petitioner said there were only two people working that morning, but the work schedule for the Store indicates at least five other persons were on the schedule for that morning. None of the workers was called to testify at final hearing, but the general manager, Ms. Freeman, said she believed they were all working that day. Ms. Freeman was also scheduled to work that day, but was taking part in management training outside the store. Petitioner did not notify the district manager that he could not comply with the banking policy. The Deposit was never received by the bank. Petitioner said at final hearing that he did not go to the bank with the Deposit, even though he had signed for it. He believes he sent another manager with the Deposit because it was very busy that morning, and there were not enough employees available to handle the work. His testimony in that regard is not persuasive, because the bank deposit slip for May 24, 2011, was signed by Petitioner. On June 9, 2011, the general manager, Ms. Briel, was told that the Deposit had never been made at the bank. She contacted the Store's general manager, Ms. Freeman, and asked her to investigate. Ms. Freeman did so, but could not locate the missing money. The bank also tried, but failed to locate the missing money. Ms. Freeman then contacted Petitioner to let him know the Deposit he had signed for was missing. Petitioner was given the opportunity to replace the missing money from his own funds to prevent termination of his employment, but said he did not have sufficient money in his account to do so. After completing her investigation, Ms. Freeman met Ms. Briel at a site away from the Store and disclosed her findings. Per protocol, the police were called to investigate the missing funds. No arrest was ever made, however. Ms. Briel considered Ms. Freeman's findings, consulted with the division president, the human resources department, and legal counsel and decided to terminate Petitioner's employment with Steak N Shake. Ms. Briel also issued counseling statements to Ms. Freeman and Ms. Velez relating to their failure to strictly adhere to the banking policies. Ultimately, Ms. Freeman was demoted to restaurant manager and transferred to another store due, in large part, to the violation of company policies relating to bank deposits. Petitioner had been counseled several times for shortcomings, but none of the violations were related to banking policies. Nonetheless, Petitioner was made aware that further disciplinary action against him for any issue may result in the termination of his employment. Petitioner feels he was treated differently than Ms. Velez, who he maintains also lost a deposit. However, Ms. Velez's deposit was ultimately accounted for by the bank, which had made a mistake. Petitioner's deposit was never accounted for by the bank or by anyone else. Ms. Velez's employment with Steak N Shake was ultimately terminated for "performance issues." Other managers have lost deposits and/or stolen money from Steak N Shake. In every instance, the offending manager's employment was terminated. There is zero tolerance at Steak N Shake for misappropriation of money. Petitioner cannot recite any incident of discrimination against him by Steak N Shake on the basis of his race or national origin. Petitioner did not ever avail himself of the procedures for issuing a complaint based on discrimination while he was employed at Steak N Shake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Western Ulysse's Petition for Relief. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2012.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
