The Issue Pursuant to section 760.10(1)(a), Florida Statutes (2015), the issue is whether Respondent has unlawfully discriminated against Petitioner in employment on the basis of her age or national origin.
Findings Of Fact Petitioner was born on March 30, 1962. She is a Puerto Rican native who is fluent in English and Spanish. Respondent first employed Petitioner in April 2009 as a flight attendant. She worked continuously in this job until her termination on April 1, 2014. The primary duty of a flight attendant is to ensure the safety of the passengers. At the time of employment, Respondent provided Petitioner with four weeks' training as a flight attendant and a voluminous manual devoted to the responsibilities of a flight attendant. The training and manual identify as the critical stages of flight the periods of takeoff and landing, during which time the sole focus of the flight attendant is on passenger safety. During these critical stages of flight, the sterile cockpit rule prohibits all communications within the cabin, including any announcements by interphone, because of the potential to distract the pilots during the crucial activities of taking off and landing. On March 9, 2014, Petitioner was one of three flight attendants on a flight from Fort Lauderdale to San Juan, Puerto Rico. Among the passengers on the flight was another employee of Respondent, Tony Dali, who was the supervisor of Petitioner's supervisor. With an administrative assistant, Mr. Dali was traveling to Puerto Rico to recruit flight attendants, especially persons fluent in Spanish, due to Respondent's Language of Destination program. This program provides a small pay incentive to persons who are fluent in the language, other than English, of a JetBlue destination. On the flight on the day in question, Respondent was the flight attendant designated under the Language of Destination program. The flight was uneventful until the critical stage of landing. After she had performed her routine tasks of collecting service items, checking the positions of trays and seats, requiring the passengers to resecure all carry-on baggage that they had removed during flight, and ensuring that all passengers were wearing seat belts, Petitioner took her seat in preparation for landing. Her position was in the rear of the aircraft where she had additional responsibilities in connection with safety equipment stowed in that area of the plane. On final descent with the wheels down, suddenly a strange chirping sound was heard over the speakers in the cabin and in the cockpit. The sound had been produced by a battery- operated toy Coqui frog. Leaving the required brace position for a second or two during the enforced silence of final descent, Petitioner had held the toy to the interphone and activated the toy to make the chirping sound. Petitioner's intent had been to amuse the passengers and expose them to the local color of her--and, for some passengers, their--native country. Respondent conducted an investigation, but the material facts were never in dispute, as Petitioner readily admitted her actions. At the conclusion of the investigation, Respondent terminated Petitioner for her violation of safety rules in playing the sound and leaving the braced position during final descent. There is no direct or statistical evidence of discrimination based on age or national origin. The facts prove only an unsuccessful attempt at humor that probably became less humorous with each level of internal review within Respondent. Although the two safety violations did not compromise the safety of the flight, as opined by the pilot, they may have acquired greater urgency because they occurred in the presence of the boss of the boss of Petitioner. The ensuing termination of Petitioner seems somewhat harsh, but not so harsh as to support an inference of intentional discrimination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 12, 2016. DONE AND ENTERED this 20th day of January, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 20th day of January, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Abigail Freytes 11043 Northwest 8th Court Plantation, Florida 33324 (eServed) Rebecca Anne Cox, Esquire Akerman, LLP 666 5th Avenue, 20th Floor New York, New York 10103 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether the Division of Administrative Hearings has jurisdiction over an alleged unlawful employment practice which occurred on the premises of a federal enclave.
Findings Of Fact Respondent asserts that Petitioner's allegations arose during her employment at Eglin Air Force Base, Florida. Respondent also asserts that Petitioner never worked for it in Florida at a site other than Eglin Air Force Base. Petitioner's Charge of Discrimination and Petition for Relief do not refute these assertions. It is uncontested that Eglin Air Force Base, Florida, is a federal enclave. The land on which the base is located was ceded by the State of Florida to the United States on April 26, 1937. At that time, the federal government was given exclusive jurisdiction over the land. The cession deed was recorded on April 27, 1937, and states as follows in pertinent part: I Fred P. Cone, Governor of the State of Florida, in the name and by the authority of said State and pursuant to the statutes of said State in such cases made and provided, do hereby cede to the United States of America, exclusive jurisdiction over said lands so acquired. Secretary of State (Florida), Deeds, Book A, pages 349-352.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order determining that the Division of Administrative Hearings does not have jurisdiction over the issues raised in the instant Petition for Relief and dismissing said petition with prejudice. DONE AND ENTERED this 13th day of May, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 13th day of May, 1999. COPIES FURNISHED: Cynthia K. Faulconer 145 Wright Circle Niceville, Florida 32578 Edmund J. McKenna, Esquire Ford and Harrison, LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, Rusty Santangelo, was subject to an unlawful employment practice by Respondent, Ace Staffing, based on his disability (handicap) in violation of the Florida Civil Rights Act.
Findings Of Fact Ace Staffing is a temporary employment agency. Ace Staffing works mostly with day laborers in the construction industry. Petitioner is a former temporary worker with Ace Staffing. Petitioner worked for Ace Staffing from 2007 through 2015. Generally, when an Ace Staffing customer requests temporary employees, the customer completes a Purchase Order (“PO”) indicating the date(s) for which employees are needed, the number of employees requested, and a description of the work to be performed. Ace Staffing then contacts its list of available employees and offers them job assignments. If an employee accepts the assignment, Ace Staffing provides that employee with a “ticket” for the customer to complete. The customer is to record the hours the employee worked, as well as the rate of pay on the ticket. After the employee performs the job, the employee returns the completed ticket to Ace Staffing along with the PO which the customer signs. Ace Staffing then collects information from the ticket to generate a paycheck for the employee. Ace Staffing typically pays employees on the day they worked. Thereafter, Ace Staffing bills the customer. Occasionally, Ace Staffing places a temporary employee in a long-term job assignment. In these circumstances, Ace Staffing considers the employee to be working a “steady” or “open” ticket. The customer still prepares a PO for Ace Staffing to record how many workers the customer employed for each work day. When working on a “steady” or “open” ticket, Ace Staffing requires the employee to provide his or her work hours to the customer at the worksite. The customer then reports the time to Ace Staffing (on a ticket or by e-mail). Ace Staffing, in turn, issues the paycheck to the employee. All Ace Staffing temporary employees are hired for specific jobs as requested by customers. Employees are never guaranteed constant work or a permanent assignment. Either Ace Staffing, the employee, or the customer may terminate the job at any time. Petitioner began working for Ace Staffing in September 2007. In 2011, Ace Staffing sent Petitioner to fill a temporary job assignment with Owens, Renz & Lee Company, Inc. (“Owens”). Owens provided janitorial and maintenance services for the Amway Arena (the “Arena”) in Orlando, Florida. Ace Staffing did not have a formal contract with Owens for its staffing services. Either Ace Staffing or Owens could end their business relationship at any time. Petitioner generally worked for Owens at the Arena performing custodial services. Petitioner worked in a part-time capacity and typically only when the Arena hosted events, such as music concerts and sporting events. Soon, Petitioner’s assignment with Owens became a “steady” or “open” ticket. When Owens needed an employee for the Arena, Ace Staffing allowed Owens to contact Petitioner directly to schedule the job. Ace Staffing instructed Petitioner to simply show up at the Arena when Owens offered him work. Regarding payment for his work for Owens, Ace Staffing instructed Petitioner that he was responsible for ensuring Owens completed the PO and the ticket for his work hours. Therefore, when Owens hired him, Petitioner was required to report his time to Owens. Specifically, Petitioner was to record the time he reported in, and when he left, the Arena. Typically, Petitioner would “punch in” with a time card when he checked in at the Arena. Owens would provide Petitioner’s recorded work hours to Ace Staffing on Petitioner’s ticket or via e-mail. Petitioner would drop off his ticket at the Ace Staffing office once a week. Ace Staffing would then provide Petitioner a ticket for Owens to complete the following week. This process enabled Ace Staffing to accurately prepare Petitioner’s paycheck. Ace Staffing paid Petitioner based on the work hours Owens reported on the ticket (or by e-mail). Ace Staffing issued Petitioner’s paycheck on a weekly basis. Petitioner very much enjoyed his job at the Arena. Similarly, the evidence indicates that Owens considered Petitioner a good and reliable worker. Petitioner worked steadily at the Arena averaging ten to 20 events a month. Petitioner began to envision that he could work for Owens as long as he wanted. Periodically, however, Petitioner complained to Ace Staffing that he was not being paid for all the hours he worked at the Arena. Petitioner’s pay issues came to a head in October 2015. On October 2, 2015, Petitioner appeared at the Ace Staffing office to discuss his pay shortage. Petitioner met with Prity Patel, the Owner of Ace Staffing. Petitioner told Ms. Patel that he had not been paid for approximately 45 hours that he had worked the previous fall in September and October 2014. Ms. Patel testified at the final hearing that the October 2, 2015, incident was not the first time Petitioner had complained about not being paid for all the hours he worked for Owens. She relayed that in April 2014, Petitioner told her that he had not been paid for several events he worked during December 2013. Both Ace Staffing and Owens investigated Petitioner’s claim. Owens subsequently confirmed that Petitioner had worked more hours than were recorded on his ticket. Thereafter, Ace Staffing paid Petitioner for the missing time and billed Owens accordingly. Subsequently, in May 2014, Petitioner again reported to Ace Staffing that he had worked several jobs for Owens for which he had not received compensation. This time, Petitioner identified one day in January 2014, and 12 days in March 2014. Once again, both Ace Staffing and Owens reviewed their respective records, and Owens was able to confirm that Petitioner worked the additional hours for which he claimed he was not paid. Ace Staffing paid Petitioner for all of the missing time. After Petitioner’s second complaint in May 2014, Ms. Patel instructed Petitioner to regularly check his paystub to ensure that he was properly paid for all the hours he worked. Ms. Patel specifically cautioned Petitioner not to wait weeks (or longer) to advise Ace Staffing of any error in his paycheck. However, despite Ms. Patel’s instructions for Petitioner to conscientiously record his work hours with Owens, on October 8, 2014, and again on November 8, 2014, Petitioner sent two e-mails to Owens declaring that he was missing pay for hours worked in September and October 2014. Then, almost a year later on September 11, 2015 (evidently because Owens never satisfactorily responded to his initial requests), Petitioner sent another e-mail to Owens about his missing time. At that point, on September 24, 2015, Owens sent an e-mail to Ray Patel (Ace Staffing’s office manager) informing him that Petitioner was complaining that he had not been paid for work in September and October 2014. Based on Petitioner’s history of pay issues, when Ms. Patel learned on October 2, 2015, that Petitioner was again complaining about missing pay, she became upset. She was frustrated that Petitioner had failed to follow her instructions to ensure that Owens accurately recorded his work hours. Ms. Patel was further irritated that Petitioner was bemoaning pay discrepancies that were over a year old. She was also distressed that, upon receiving each paycheck over the last year, Petitioner had assured her that the amount of his paycheck was accurate. Ms. Patel explained that reconstructing Petitioner’s work hours was intensive and time-consuming for both Ace Staffing and Owens. Petitioner was asking to be paid for hours that Owens had not submitted to Ace Staffing. Therefore, tracking down Petitioner’s work days and hours required checking with each of Petitioner’s supervisors at Owens on the specific event to verify whether Petitioner did, indeed, work on the date he claimed. This process was complicated by the fact that Owens employed hundreds of workers. Consequently, reviewing the jobs Petitioner worked was burdensome on both Ace Staffing and Owens. Therefore, upon hearing Petitioner’s latest complaint, Ms. Patel instructed Petitioner not to return to Owens until she could straighten out his back pay. Ms. Patel expressed to Petitioner that she would investigate the issue, and he could return to the Arena after the matter was resolved. Ms. Patel testified that she spent a considerable amount of time in October and early November 2015 accounting for and reconciling the time Petitioner insisted that he worked for Owens in September and October 2014. Ms. Patel voiced that she was ultimately unable to independently confirm the hours Petitioner claimed. Instead, she had to rely on Petitioner’s personal calendar, which he used to track the days and events he worked at the Arena. Ace Staffing paid Petitioner for all the missing hours (44.25 hours) he claimed he worked. On November 30, 2015, Petitioner received a call from Ms. Patel informing him that the final amount of all his missing back pay from 2014 would be deposited in his bank account. Ace Staffing did not bill Owens for Petitioner’s missing time. As a direct consequence of the complications Petitioner’s pay issues caused, Ms. Patel decided to end Ace Staffing’s business relationship with Owens. Petitioner was the only Ace Staffing employee working for Owens, and the account had simply become too troublesome to administer. As a result, after October 2, 2015, Ace Staffing no longer placed any temporary employees with Owens or the Arena. On November 30, 2015, Ray Patel formally notified Owens that Petitioner would no longer be working for them. On the other hand, Petitioner, after he met with Ms. Patel, was quite anxious to return to work at the Arena. He was fully prepared to report back to Owens as soon as Ace Staffing resolved his pay discrepancy. Petitioner believed that Ace Staffing and Owens were not communicating with each other, and the clerical error that led to his pay issue could be resolved with minimal coordination between the two companies. Petitioner had been prepared to work at the Arena on Friday, October 3, 2015, for the start of basketball season. Petitioner represented that Owens had also scheduled him for additional events over the next two weeks. Further, Owens indicated that it was willing to continue employing Petitioner despite the pay dispute. After October 2, 2015, Ace Staffing continued to offer Petitioner temporary job assignments. Prior to and during the years Petitioner worked for Owens, Ace Staffing regularly sent Petitioner on day labor jobs. These jobs included work as a flagman, a sign holder, and distributing flyers. Ms. Patel, Rich Patel (an Ace Staffing manager and secretary), and Janice Mullendore (Ace Staffing’s office assistant) all persuasively testified that during October and November 2015, they contacted Petitioner and presented him with similar work. Ms. Patel explained that she only intended not to send Petitioner (or anyone) back to Owens. But, Ace Staffing always had jobs to provide to her temporary employees, including Petitioner. Petitioner, however, turned down every assignment Ace Staffing offered. He expressed to Ace Staffing that he already had a job he liked-–working for Owens at the Arena. Ace Staffing advised Petitioner that the assignments at the Arena were no longer an option. Petitioner pronounced that he did not want any other jobs but to work for Owens at the Arena. Ms. Mullendore testified that after Petitioner rejected several temporary assignments, she removed him from her list of available employees. She did not want to spend time calling someone who was not interested in working on the jobs she offered. Ms. Patel echoed Ms. Mullendore’s statement saying that after Petitioner turned down three to four job offers, Ace Staffing simply stopped calling him about available temporary work. Ace Staffing did not offer Petitioner another temporary job after November 2015. As a result of the fallout from his meeting with Ms. Patel on October 2, 2015, Petitioner asserts that Ace Staffing unjustly “terminated” him based on his disability. Petitioner felt that Ace Staffing punished him for complaining about his missing pay and for being “slow.” Petitioner asserts that he tried his best to keep up with the hours he worked for Owens. He may have been “slow,” but he was determined. Ms. Patel denied that Ace Staffing terminated Petitioner’s employment. She emphasized that the reason Ace Staffing halted Petitioner’s assignment with Owens was due to his multiple failures to accurately and timely report his work hours to Owens (and Ace Staffing). Ms. Patel stressed that Petitioner’s failure to dutifully record his hours at the time he worked at the Arena placed an extreme and unnecessary administrative burden on Ace Staffing. Reconciling Petitioner’s pay discrepancies required hours of extra work for both Ace Staffing and Owens. Further, Petitioner’s actions placed Ace Staffing in the uncomfortable position of having to request its customer (Owens) review its own work records to verify Petitioner’s work hours. Ms. Patel felt that the situation resulted solely from Petitioner’s inattentiveness. The October 2015 complaint was Petitioner’s third incident involving unpaid work hours, which Ms. Patel determined was unacceptable. Ray Patel also testified that Ace Staffing did not terminate Petitioner. Ace Staffing simply stopped offering Petitioner temporary assignments after November 2015. Mr. Patel further testified that Ace Staffing’s decision to remove Petitioner from its list of available workers was not related to any disability from which he suffered. Ace Staffing’s decision was based on Petitioner’s unwillingness to take any job assignment other than with Owens. Petitioner vehemently challenged Ace Staffing’s representation that it presented him additional work after October 1, 2015. Petitioner recounted that, according to his phone records, Ace Staffing called him seven times between October 5, 2015, and November 30, 2015. Of these seven calls, Petitioner believed that only one call concerned additional temporary work. This call came from Rich Patel who offered him an assignment passing out flyers. At the final hearing, Petitioner described a number of mental and physical ailments he experienced during his time working for Ace Staffing.4/ In 2000, Petitioner was diagnosed with human immunodeficiency virus (“HIV”), which caused Petitioner several lingering side effects including chronic muscle pain and fatigue. Since March 2011, Petitioner has received regular treatment for bipolar disorder. Petitioner was Baker Acted in June 2011 due to depression and an attempted suicide. In 2011 and 2012, Petitioner experienced several anxiety attacks while working at the Arena. In 2011 and 2014, Petitioner underwent surgery related to an umbilical hernia from which he still endures complications. Petitioner continues to be treated for depression with psychotic features. In addition, Petitioner suffers from asthma, sleep apnea, and plantar fasciitis in both feet. Ace Staffing does not dispute that Petitioner suffered from disabilities during the time he worked for them.5/ (Petitioner concedes that Ace Staffing had no knowledge of his HIV or foot issues.) Ace Staffing was aware that Petitioner was limited in the types of work he was able to perform. Ace Staffing tried to accommodate Petitioner’s limitations by offering him job assignments Petitioner indicated he could execute. Despite all his medical conditions, Ace Staffing readily placed Petitioner with Owens at the Arena. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Ace Staffing discriminated against Petitioner based on his disability (handicap). Accordingly, Petitioner failed to meet his burden of proving that Ace Staffing discriminated against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no unlawful employment practice and dismissing Petitioner’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 13th day of October, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2017.
The Issue The issue is whether Respondent committed employment discrimination against Petitioner.
Findings Of Fact Petitioner is a Peruvian South American Indian and Hispanic. He is also a Spanish speaker, although he speaks English fluently. Respondent owns and operates a chain of grocery stores. Petitioner worked at Respondent's store in Fort Lauderdale from December 1992 until he was terminated in August 2005. Petitioner started as a produce clerk and, at the time of his termination, he had worked his way up to produce manager. He had been employed as a produce manager of the Fort Lauderdale store since April 2002. Petitioner enjoyed a good reputation among his coworkers. He was fair and a good manager. He enjoyed good rapport with customers and employees. Petitioner's employment record was unblemished except for one incident prior to the subject incident. On February 17, 2005, Petitioner received an Unsatisfactory Work Warning for misuse of Respondent's email system and inappropriate communication. Petitioner was one of several employees disciplined at this time for this offense. Under well-established and uniformly enforced rules, Respondent maintained a policy of terminating any employee who received any discipline within six months after receipt of an Unsatisfactory Work Warning. On August 3, 2005--which is within six months of February 17, 2005--Petitioner was approached by an employee whom he supervised. The employee asked Petitioner for an evaluation. Petitioner complied, informing the employee that his work merited a raise, but no money was available at the time for raises. The employee took his request to Petitioner's supervisor, who conducted a meeting with the employee and Petitioner. During the meeting, she explained Respondent's policy about raises, correcting the mistaken understanding of Petitioner that raises were not presently available. She approved the employee for a raise. The meeting was amicable and ended in this fashion. Later in the day of the meeting, Petitioner approached the employee, playfully tapped him with a small bundle of wire wraps used to bind produce, and asked him, jokingly, why he was trying to get Petitioner into trouble. The employee felt intimidated about the incident and reported it to Respondent's supervisor. Respondent has no tolerance for workplace behavior that may be perceived as intimidating to its employees. Based on this policy, Respondent determined that it was necessary to discipline Petitioner for the incident with the employee. But for the prior incident involving the company email system, Respondent would not have terminated Petitioner. However, because the second incident occurred within six months of the earlier warning, Respondent, consistent with its policy, terminated Petitioner. There is no evidence whatsoever that Respondent terminated Petitioner due to his race or national origin. Although the reason for terminating him does not withstand much scrutiny, it is abundantly clear that the cited reason for termination does not mask an unlawful basis for termination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan D. Jimenez 820 Northeast 19th Terrace Fort Lauderdale, Florida 33304 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jennifer L. Price, Esquire Stearns, Weaver, Miller, Weissler Alhadeff & Sitterson, P.A. 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $320.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether American Airlines committed the unlawful employment practices alleged in the employment discrimination charges filed by Petitioners and, if so, what relief should Petitioners be granted by the Florida Commission on Human Relations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' February 23, 2006, Corrected Joint Prehearing Stipulation2: Petitioners are both Hispanic. Hispanics represent a substantial portion of the workforce in American's maintenance department at Miami International Airport (MIA). Among these Hispanic employees in the maintenance department are those who occupy supervisory positions. American’s Vice-President for Maintenance, Danny Martinez, is Hispanic. As aviation maintenance technicians for American, Petitioners' job duties, as set forth in the written job description for the position, were as follows: In addition to the work specified for the Junior Aviation Maintenance Technician, an Aviation Maintenance Technician's responsibility also includes the following: troubleshooting, individually or with Crew Chief, management or professional direction, disassembly, checking and cleaning, repairing, replacing, testing, adjusting, assembling, installing, servicing, fabricating, taxing or towing airplanes and/or run-up engines, de-icing aircraft, required to maintain the airworthiness of aircraft and all their components while in service or while undergoing overhaul and/or modification. Certifies for quality of own workmanship, including signing mechanical flight releases for all work done on field work. In those work positions where stock chasers are not utilized and/or available at the time may chase own parts. May have other Mechanic personnel assigned to assist him/her in completing an assignment. Works according to FAA and Company regulations and procedures and instructions from Crew Chief or supervisor. Completes forms connected with work assignments according to established procedures and communicates with other Company personnel as required in a manner designated by the Company. Performs the following duties as assigned: cleaning of aircraft windshields; connection/removing ground power and ground start units; pushing out/towing of aircraft and related guideman functions, fueling/defueling, de-icing of aircraft. At all times material to the instant cases, Petitioners were members of a collective bargaining unit represented by the Transport Workers Union of America (TWU) and covered by a collective bargaining agreement between American and the TWU (TWU Contract), which contained the following provisions, among others: ARTICLE 28- NO DISCRIMINATION, AND RECOGNITION OF RIGHTS AND COMPLIANCE The Company and the Union agree to make it a matter of record in this Agreement that in accordance with the established policy of the Company and the Union, the provisions of this Agreement will apply equally to all employees regardless of sex, color, race, creed, age, religious preferences, status as a veteran or military reservist, disability, or national origin. The Union recognizes that the Company will have sole jurisdiction of the management and operation of its business, the direction of its working force, the right to maintain discipline and efficiency in its hangars, stations, shops, or other places of employment, and the right of the Company to hire, discipline, and discharge employees for just cause, subject to the provisions of this Agreement. It is agreed that the rights of management not enumerated in this Article will not be deemed to exclude other preexisting rights of management not enumerated which do not conflict with other provisions of the Agreement. * * * Copies of the Peak Performance Through Commitment (PPC) Program will be available to all employees upon request. Any changes to the PPC Program will be provided and explained to the TWU prior to implementation. ARTICLE 29- REPRESENTATION * * * The Union does not question the right of the Company supervisors to manage and supervise the work force and make reasonable inquiries of employees, individually or collectively, in the normal course of work. In meetings for the purpose of investigation of any matter which may eventuate in the application of discipline or dismissal, or when written statements may be required, or of sufficient importance for the Company to have witnesses present, or to necessitate the presence of more than the Company supervisor, or during reasonable cause or post accident drug/alcohol testing as provided in Article 29(h), the Company will inform the employee of his right to have Union representation present. If the employee refuses representation, the supervisor's record will reflect this refusal. At the start of a meeting under the provisions of Article 29(f), the Company will, except in rare and unusual circumstances, indicate the reason that causes the meeting and then provide an opportunity for the employee and his Union representative to confer for a reasonable period of time. Following that period, the 29(f) meeting will be reconvened and continue until concluded by the supervisor. Before written notification of discipline or dismissal is given, an employee will be afforded the opportunity to discuss the matter with his supervisor. If he desires, he will have a Union representative in the discussion. . . . * * * ARTICLE 30- DISMISSAL An employee who has passed his probationary period will not be dismissed from the service of the Company without written notification of that action. The notification will include the reason or reasons for his dismissal. Appeal from dismissal will be made, in writing, by the employee within seven (7) calendar days after receiving the notification and will be addressed to the Chief Operating Officer, with a copy to the appropriate Human Resources Office. The Chief Operating Officer will fully investigate the matter and render a written decision as soon as possible, but not later than twelve (12) calendar days following his receipt of the appeal, unless mutually agreed otherwise. A copy of the written decision will be provided to the Union. * * * If the decision of the Chief Operating Officer is not satisfactory to the employee, the dismissal and decision will be appealed in accordance with Article 30(c), provided, however, the appeal must be submitted within twenty (20) calendar days of receipt of the decision rendered by the Chief Operating Officer. An appeal from the decision of the Chief Operating Officer will be submitted to the appropriate Area Board of Adjustment in accordance with Article 32. . . . * * * ARTICLE 31- GRIEVANCE PROCEDURE An employee who believes that he has been unjustly dealt with, or that any provision of this Agreement has not been properly applied or interpreted, or against whom the Company has issued written disciplinary action, may submit his grievance in person or through his representatives within seven (7) calendar days. The grievance will be presented to his immediate supervisor, who will evaluate the grievance or complaint and render a written decision as soon as possible, but not later than seven (7) calendar days following his receipt of the grievance. . . . If the written decision of the immediate supervisor is not satisfactory to the employee whose grievance is being considered, it may be appealed within ten (10) calendar to the Chief Operating Officer, with a copy to the appropriate Human Resources Office. The Chief Operating Officer will fully investigate the matter and will render a written decision as soon as possible, but not later than twelve (12) calendar days, unless mutually agreed otherwise, following his receipt of the appeal. . . . If the decision of the Chief Operating Officer is not satisfactory to the employee, the grievance and the decision may be appealed to the System Board of Adjustment, as provided for in Article 32. * * * ARTICLE 32- BOARD OF ADJUSTMENT * * * Area Board of Adjustment, Discipline and Dismissal Cases * * * (2) Each Area Board will be composed on one member appointed by the Company, one member appointed by the Union, and a neutral referee acting as Chairman. . . . * * * Procedures Generally Applicable to the Boards * * * Employees and the Company may be represented at Board hearing by such person or persons as they may choose and designate. Evidence may be presented either orally or in writing, or both. The advocates will exchange all documents they may enter and the names of witnesses they may call in their direct case not later than ten (10) calendar days prior to the date set for hearing. Nothing in this paragraph will require either advocate to present the documents or the witnesses provided above during the course of the hearing. The advocates will not be restricted from entering documents or calling witnesses that become known subsequent to the ten (10) ten calendar day exchange, provided a minimum of forty-eight (48) hours notice is provided to the other party and a copies are submitted to the other party prior to the presentation of the direct case. The party receiving the late document or witness has the option to postpone the hearing in light of the new document or witness. Upon the request of either party to the dispute, or of two (2) Board members, the neutral referee will summon witnesses to testify at Board hearing. The Company will cooperate to ensure that all witnesses summoned by the board will appear in a timely fashion. Reasonable requests by the Union for employee witnesses will be honored. The requests for witnesses will normally not be greater than the number, which can be spared without interference with the service of the Company. Disputes arising from this provision will be immediately referred to the Director of the Air Transport Division and the Vice President-Employee Relations, or their respective designees, for resolution. A majority of all members of a Board will be sufficient to make a finding or a decision with respect to any dispute properly before it, and such finding or decision will be final and binding upon the parties to such dispute. . . . * * * ARTICLE 36- MEAL PERIODS Meal periods will be thirty minutes, except when a longer period is agreed upon between the parties. Meal periods will be scheduled to begin not earlier than three (3) hours after commencement of work that day and not later than five hours after commencement of work that day. The commencement of work is from the start of the employee's regular shift. If an employee is not scheduled for a meal period within the foregoing time span, the meal period will be provided immediately before or after it. In the event that a meal period has not been provided in accordance with the foregoing, the employee is then free, if he so desires, to take his meal period. At all times material to the instant cases, American had Rules of Conduct for its employees that (as permitted by Article 28(b) of the TWU Contract) were applicable to TWU- represented bargaining unit members, including Petitioners. These Rules of Conduct provided, in pertinent part, as follows: As an American Airlines employee, you can expect a safe and productive workplace that ensures your ability to succeed and grow with your job. The rules listed below represent the guidelines and principles that all employees work by at American. Attendance * * * During your tour of duty, remain in the area necessary for the efficient performance of your work. Remain at work until your tour of duty ends unless you are authorized to leave early. * * * 17. Work carefully. Observe posted or published regulations. * * * Personal Conduct * * * 34. Dishonesty of any kind in relations with the company, such as theft or pilferage of company property, the property of other employees or property of others entrusted to the company, or misrepresentation in obtaining employee benefits or privileges, will be grounds for dismissal and where the facts warrant, prosecution to the fullest extent of the law. Employees charged with a criminal offense, on or off duty, may immediately be withheld from service. Any action constituting a criminal offense, whether committed on duty or off duty, will be grounds for dismissal. (Revision of this rule, April 10, 1984) * * * Violations of any of the American Airlines Rules of Conduct (listed above) . . . could be grounds for immediate termination depending of the severity of the incident or offense and the employee's record. . . . At all times material to the instant cases, American had a Peak Performance Through Commitment Policy (PPC Policy) to deal with employee performance and disciplinary problems. The policy, which (as permitted by Article 28(b) of the TWU Contract) was applicable to TWU-represented bargaining unit members, including Petitioners, provided, in pertinent part, as follows: Peak Performance Through Commitment (PPC) is a program that fosters ongoing communication between managers and employees. It encourages managers . . . to regularly recognize outstanding performance and to work together with employees to address and correct performance issues fairly. For the few employees whose performance does not respond to regular coaching and counseling, the following steps advise them that continued performance problems have serious consequences, ultimately leading to termination: -First Advisory for employees with problem performance or conduct who do not respond to coaching or counseling. -Second Advisory for employees whose performance fails to respond to initial corrective steps. -Career Decision Advisory for employees whose problem performance or conduct warrants termination. They are given a paid Career Decision Day away from work to consider their future and continued employment with American Airlines. -Final Advisory for employees whose problem performance or conduct requires termination, or those who have failed to honor the Letter of Commitment signed after their Career Decision Day. Please note that steps can sometimes be skipped, in instances where the nature of the conduct is very serious. It is your responsibility as an employee to know the company's rules of conduct and performance standards for your job, and to consistently meet or exceed those standards. In the event that your performance does not measure up to the company's expectations, your manager will work with you to identify the problem and outline steps to correct it. * * * SERIOUS INCIDENTS OR OFFENSES Some violations of our guiding principles and rules of conduct will result in immediate termination. For example, insubordination, violating our alcohol and drug policy, abusing travel privileges, aircraft damage, violations of the work environment policy, and job actions could be grounds for immediate termination, depending on the severity of the incident and the employee's record. Hate-related conduct and dishonesty will always result in termination. In cases when immediate termination may be appropriate but additional information is needed, the employee may be withheld from service while an investigation is conducted. At all times material to the instant case, Petitioners' regular shifts were eight and a half hours, including an unpaid, thirty minute "meal period" (to which TWU-represented bargaining unit members were entitled under Article 36 of the TWU Contract). Although they were paid to perform eight hours of work during their eight and a half hour shifts, TWU-represented bargaining unit members, including Petitioners, were, in practice, allowed to take up to an hour for their meals, without penalty. TWU-represented bargaining unit members "clocked in" at the beginning of their shift and "clocked out" at the end of their shift. They were expected to remain "on the clock" during their "meal periods" (which, as noted above, were to be no longer than one hour). During his eight and a half hour shift which began on July 30, 2004, Petitioner Castellanos was assigned to perform a "routine 'A' [safety] check" on a Boeing 757 aircraft, an assignment it should have taken a "well qualified [aviation maintenance technician] working quickly but carefully" approximately four hours to complete. At the time he left MIA that evening to go to the Quench nightclub, Mr. Castellanos was two hours and 15 minutes into his shift. During his eight and a half hour shift which began on July 30, 2004, Petitioner Pena was assigned to perform "PS checks" on two Boeing 737 aircraft, an assignment it should have taken a "well qualified [aviation maintenance technician] working quickly but carefully" at least six hours to complete. At the time he left MIA that evening to go to the Quench nightclub, Mr. Pena was three hours and 45 minutes into his shift. Walter Philbrick, an investigator in American's corporate security department, covertly followed Petitioners when they left MIA that evening and kept them under surveillance until their return almost four hours later. Petitioners did not clock out until following the end of their shifts on July 31, 2004. In so doing, they effectively claimed full pay for the shifts, notwithstanding that, during the shifts, they had been off the worksite, engaged in non-work- related activity, for well in excess of the one hour they were allowed for "meal periods." Mr. Philbrick prepared and submitted a report detailing what he had observed as to Petitioners' movements and conduct during the time that they had been under his surveillance. Mike Smith is American's maintenance department station manager at MIA. He is "responsible for the entire [American] maintenance operation in Miami." Mr. Smith assigned his subordinate, Anthony DeGrazia, a day shift production manager at MIA, the task of looking into, and taking the appropriate action on behalf of management in response to, the matters described in Mr. Philbrick's report. Neither Mr. Smith nor Mr. DeGrazia is Hispanic. Mr. DeGrazia met separately with both Mr. Pena and Mr. Castellanos. The meetings were held in accordance with the provisions of Article 29(f) of the TWU Contract. Before conducting the meetings, Mr. DeGrazia had reviewed Mr. Philbrick's report. Mr. Castellanos stated, among other things, the following in his meeting with Mr. DeGrazia: on the evening in question, he was trying to complete his assignment as fast as possible because he wanted to have an alcoholic beverage; that evening, he was "away from work" for approximately four hours, which he knew was wrong; and he and Mr. Pena had engaged in similar activity on perhaps six or seven previous occasions. Mr. Pena stated, among other things, the following in his meeting with Mr. DeGrazia: on the evening in question, he was "off the field" for three to four hours, which he knew was not "okay"; this was something he had done "sometimes" in the past; and American was a "great company" to work for. Based on his review of Mr. Philbrick's report and the information he had obtained from Petitioners, Mr. DeGrazia concluded that Petitioners had committed "time clock fraud" in violation of Rule 34 of American's Rules of Conduct and that they therefore, in accordance with American's policy that "dishonesty will always result in termination" (as expressed in the PPC Policy), should be terminated. Before taking such action, Mr. DeGrazia consulted with Mr. Smith and "someone" from American's human resources department, who both "concurred" with Mr. DeGrazia that termination was the appropriate action to take against Petitioners. On August 12, 2004, Mr. DeGrazia issued Final Advisories terminating Petitioners' employment. The Final Advisory given to Mr. Castellanos read, in pertinent part, as follows: On Friday, July 30, 2004, your scheduled tour of duty was 2230-0700. During your scheduled shift you were assigned to complete an A-check on a 757 aircraft. At approximately 0045, Corporate Security observed you leaving the premises and going into a nightclub in Coconut Grove. While there, you were observed at the bar drinking from a plastic cup. You were observed leaving the nightclub at 0315 and driving towards the airport. By your own account, you returned to the airport approximately 0400. During a company investigation, you admitted to leaving the premises, during your scheduled tour of duty and going to a restaurant/bar. Further, you admitted to consuming alcoholic beverages. Additionally, when asked how it was possible for you to complete your assignment in such a short amount of time you stated that you were, "trying to complete the job as fast as I can because I was getting the urge of getting a drink." Based on the above information I have concluded that your actions fall far short of that which may be reasonably expected of our employees and are a direct violation of American Airlines' Rules of Conduct, Rules 3, 4, 17, and 34 . . . . In view of the above rule violations your employment with American Airlines is hereby terminated effective today, August 12, 2004. * * * The Final Advisory given to Mr. Pena read, in pertinent part, as follows: On Friday, July 30, 2004, your scheduled tour of duty was 2100-0530. During your scheduled shift you were assigned to complete two PS-checks on 737 aircraft. At approximately 0045, Corporate Security observed you leaving the premises and going into a nightclub in Coconut Grove. While there, you were observed at the bar drinking from a plastic cup. You were observed leaving the nightclub at 0315 and driving towards the airport. By your own account, you returned to the airport approximately 0400. During a company investigation, you admitted to leaving the premises, during your scheduled tour of duty and going to a restaurant/bar. Further, you admitted to consuming alcoholic beverages. Additionally, when you[] were asked if it is acceptable to go to lunch for 3-4 hours you stated, "no, according to Company Rules, it's not OK." Based on the above information I have concluded that your actions fall far short of that which may be reasonably expected of our employees and are a direct violation of American Airlines' Rules of Conduct, Rules 3, 4, and 34 . . . . In view of the above rule violations your employment with American Airlines is hereby terminated effective today, August 12, 2004. * * * That Petitioners were Hispanic played no role whatsoever in Mr. DeGrazia's decision to terminate them. Mr. DeGrazia terminated Petitioners because, and only because, he believed that they had engaged in dishonesty by committing "time clock fraud." Mr. DeGrazia has never encountered another situation, in his capacity as a production manager for American, where an aviation maintenance technician over whom he had disciplinary authority engaged in conduct comparable to the conduct for which he terminated Petitioners. No one has ever reported to him, nor has he ever observed, any aviation maintenance technician other than Petitioners taking "meal periods" that were longer than an hour while remaining "on the clock." Petitioners both grieved their terminations pursuant to Article 31 of the TWU Contract. Neither of them advanced any allegations of anti-Hispanic discrimination in his grievance. Petitioners' grievances were ultimately denied on September 9, 2004, by William Cade, American's managing director for maintenance. Petitioners appealed the denial of their grievances to the American and TWU Area Board of Adjustment for Miami, Florida (Board), in accordance with Article 32 of the TWU Contract, which provided for "final and binding" arbitration of disputes arising under the contract. A consolidated evidentiary hearing was held before the Board on April 28, 2005. At the hearing, Petitioners were represented by counsel. Through counsel, they called and cross- examined witnesses, submitted documentary evidence, and presented argument. Neither of them testified. The Board issued a decision on June 27, 2005, denying Petitioners' grievances. The TWU Board member dissented. The Discussion and Opinion portion of the decision read, in pertinent part, as follows: There is no dispute that the rule violations by grievants['] actions on July 30, 2004 constituted time card fraud and violation of rules relating to remaining at work. This was not some minor taking of time, such as overstaying lunch for a shortened period. It was a well-planned event. They had with them a change of clothes - in effect "party clothes" apropos to a late night-early morning South Florida nightclub. They had even done this several times before. Once at this nightclub they actually drank very little. Grievant Pena had two drinks and grievant Castellanos appeared to have just one. In fact, when he was later tested after his return to work almost five hours later, the result was negative for drugs and alcohol. Clearly, they failed to remain at work for their tours of duty in violation of Rules 3 and 4. These rules, however, do not by themselves call for immediate discharge nor do any of the Company documents relating to rules, such as its PPC, refer to them as serious violations that would incur discharge. The seriousness here concerns the grievants' badging out after their eight-hour tour and being paid for eight hours, almost five of which they did not work. There is no question that this is time card fraud and as such it involves dishonesty that is covered by Rule 34's "dishonesty of any kind." Numerous arbitrators for the parties have found such conduct to be violative of Rule 34 and have concluded that stealing time from the Company is dishonesty that requires immediate dismissal. * * * [T]he grievants engaged in this misconduct on multiple occasions that involved more than half of their shift being spent at a nightclub. And they knew it was wrong as they readily admitted when finally caught. Mitigation based on the grievants' EAP involvement is insufficient to overcome and reduce in any fashion their core responsibility to be honest employees and abide by all Company rules and regulations. The Company made this clear enough in its current Drug and Alcohol policy, and, as seen, other Boards have found it reasonable, as does this Board. To all of this the Union argues that there are other mitigating factors - seniority, disparate treatment, failure to consider employment records and a common practice permitting employees to extend lunch breaks. As to the latter, there is no evidence that any employee has been allowed to stay away from work for almost five hours with the knowledge or consent of management at any level. There is some evidence of employees overstaying the break by 30 minutes, of employees going for food for the crew and arriving back late and even some two-hour absences. None of this is comparable to the grievants' conduct. Nor is the evidence concerning supervisor Delgadillo enough to warrant the finding of a practice. She was not Pena's supervisor. She called grievant Castellanos' cell, but that alone does not mean that she knew he was off several hours at that point socializing and drinking in Coconut Grove on July 30 or at other times. She may have gone out with them while she was a mechanic, but the evidence does not show that she went for these long journeys to drink and socialize at a night club. Most importantly, the grievants never claimed a practice existed but instead readily admitted at the 29(f)s that their conduct was wrong and they violated Company rules. As to the disparate treatment incidents, although the dishonesty issue appears similar, different treatment only becomes disparate when the employees being compared also have factual situations and records that are similar. The comparators here did not leave work on more than one occasion, or on any occasion, for four hours or more to drink and socialize in a nightclub. Thus, Mora's 45-minute late punch-in resulted from his retrieving his drivers' license; he then immediately informed management of what he did. He did not have to be put under security surveillance for this type of conduct occurring in the past. Although his 30-minute extended lunch was part of the practice referred to above, it hardly qualifies as like conduct when compared to the grievants' activities. The claim by Vizcaino that he was sick when he used his Company travel privilege is the type of violation referred to the Travel Abuse Committee under a rule penalizing employees by suspending their travel privileges. The facts of that incident and the reasoning of this committee are not known to make any clear and relevant comparison. Even if accepted as a valid comparison, it is only one employee incident that by itself is insufficient to show that management disparately treated these grievants. Nor is their any proof that Rule 34 was involved in either of these situations. Manager DeGrazia disclosed that he did not consider the grievants' prior record or their seniority. He explained that the seriousness of their conduct was sufficient for his decision. The Board fully recognizes that the grievants cooperated during the investigation, had no prior discipline, and had seniority from 1989 and 1996. Each of these factors is significant in assessing the suitability of the penalties. But it is well established by the parties and even in arbitration cases involving outside parties, that in light of the gravity of time card fraud, these factors need not be evaluated. The Chairman notes nonetheless, that seniority and work records cannot be entirely ignored. But here, the grievants' propensity in the past to engage in this same outlandish conduct, and to do so undetected, significantly minimized, for mitigation purposes, much of their good record and seniority. Petitioners subsequently filed employment discrimination charges with the FCHR, alleging for the first time that their terminations were products of anti-Hispanic discrimination. There has been no persuasive showing made, in support in these allegations, that the decision to terminate them was motivated by anything other than legitimate business considerations.
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 the American not guilty of the unlawful employment practices alleged by Petitioners and dismissing their employment discrimination charges. DONE AND ENTERED this 15th day of May, 2006, 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 15th day of May, 2006.
The Issue The issue is whether Respondent committed an act of discrimination against Petitioner on the basis of her gender and national origin, and subject to retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Wanda I. Perales, was born in Puerto Rico and moved to the United States in 2008 when she was approximately 32 years old. She has lived in Florida since that time. She considers her national origin to be Hispanic. Petitioner was hired by EZPAWN in November 2009 as a sales and lending representative. Her position at EZPAWN was the first she was able to obtain in the United States after looking for employment for over a year. Respondent has policies and procedures in place that prohibit discrimination on the basis of gender, national origin, or any other protected characteristics or classes of employees. Respondent’s policies and procedures also prohibit retaliation. Petitioner received a copy of, and read, the employee handbook containing all of Respondent’s anti-discrimination policies. She was well aware that EZPAWN had anti-discrimination and anti-retaliation policies. When Petitioner first began working for Respondent, she worked at its Palm Bay Road location in the Melbourne, Florida, area. At that time, she received training on Respondent’s employee handbook and about obtaining customer IDs. She was taught that “[w]hen a customer comes to the store to see jewelry and the value is more than $500, we have to ask for one ID, keep it . . . in the jewelry case. And then we can hand the . . . jewelry to the customer.” This policy is found in the employee handbook. The policy states that Class A Misconduct, which “may result in termination of employment on the first occurrence,” includes: Behavior that creates actual harm or loss to another person or to the Company; damage to Company property or to the property of others while on Company time or on Company premises. This includes, but is not limited to: . . . [f]ailure to obtain a customer’s ID prior to allowing the customer to handle jewelry that is priced at $500 or more (resulting in loss). Petitioner understood that if she violated this policy she could be subject to discharge or termination. Petitioner testified that the training did not address what to do if two people came into the store at the same time. It was her understanding that if a couple came into the store together, she was only required to ask for one ID. Both Joseph Roberts from Respondent’s human resources, and Aban Basch, the store manager, testified that the policy applies as it is written and that if a couple comes into the store, the ID must be received from the person (or persons) to whom the jewelry is actually handed. One ID is all that is required if only one member of the couple will handle the jewelry. There is also a sign in the jewelry case at each of Respondent’s locations that states, “[a] state issued photo identification is REQUIRED for all jewelry items being shown valued over $500.” While working in the Palm Bay store in January 2010, “John” (last name unknown by Petitioner) became Petitioner’s supervisor. She alleged that on a few occasions he wanted to transfer her because of the language barrier. After Petitioner complained of John’s comments, Mr. Roberts, the human resources business partner overseeing Central Florida, went to the store to investigate. Mr. Roberts coached John on his comments and provided him with additional training. Petitioner seemed to be satisfied with these results. John never made derogatory comments about Puerto Ricans or women. Further, John never took any adverse employment action against Petitioner. In July 2010, Petitioner requested a transfer to a store closer to where she lived. This was at her request and was not disciplinary on the part of her employer. She had never been written up or disciplined by Respondent while in the Palm Bay store. Petitioner’s transfer request was granted and she moved to a store located on South Semoran Boulevard in Orlando, Florida. At the Semoran store, the majority of EZPAWN’s customers (estimated by the manager at 80-85 percent) are Hispanic. Petitioner communicated with them in Spanish as necessary for those who only spoke Spanish. Of the 12 employees Petitioner worked with at the Semoran store, ten of them were Puerto Rican or Hispanic, and seven were women. At some point, Mr. Basch became Petitioner’s supervisor. In February 2012, he brought in flowers and chocolates for all the employees for Valentine’s Day. Petitioner rejected the gifts and believed that thereafter, Mr. Basch changed completely when dealing with her. Petitioner believes Mr. Basch cut her hours on one occasion because she had rejected the candy and flowers he brought her and the other employees. Mr. Basch testified he cut hours because his district manager had directed him to reduce hours for that week to manage payroll. When she thought Mr. Basch was being disrespectful, Petitioner called the employee hotline and made a complaint against him. In response to the complaint, Mr. Roberts visited the store to investigate, and Petitioner also spoke with Cindy Bradley, Respondent’s Vice President of Human Resources. Both Mr. Roberts and Ms. Bradley found Petitioner’s claims to be unsubstantiated. On April 8, 2013, a man and a woman walked into the Semoran store. Petitioner assumed they were together since they asked to look at engagement rings. The woman gave Petitioner her photo ID, and Petitioner handed the ring valued at $1,500 to the man. Upon receiving the ring, the man ran from the store. Petitioner admitted she gave the ring to a person from whom she had not secured a photo ID. District Manager Corey Day, Manager Mr. Basch, and Assistant Manager Valdemar Santos (of Puerto Rican descent) were in the store when the incident occurred. According to Petitioner, Mr. Santos ran from the store in pursuit of the individual who took the ring. Petitioner believed that running after someone who steals from the store is a violation of company policy. This was contradicted by Messrs. Roberts and Basch who both said it was important to pursue a thief to be able to tell the police in which direction he or she ran and whether the thief got into a vehicle which they could later identify to law enforcement. The only reason given by Petitioner that she was discriminated against based on her gender is that Mr. Santos, a male employee, was not terminated for following the shoplifter out of the store, an act she believed to be in violation of company policy. Following the incident, Mr. Basch called the police who came to the store. They approached the suspect, but were not able to retrieve the ring because he no longer had it in his possession. The stolen ring was never returned to EZPAWN. Since Petitioner violated EZPAWN’s policy of securing an ID from any person who is handed a piece of jewelry valued at more than $500, resulting in a loss of the property, the decision was made to terminate her employment with Respondent. Mr. Roberts made the decision to terminate Petitioner’s employment after discussing the matter with Messrs. Day and Basch. Mr. Roberts testified that the decision to terminate Petitioner’s employment had nothing to do with her national origin or gender. During Petitioner’s next scheduled work shift, Mr. Day asked to speak with her in the manager’s office. Mr. Basch was also present. Mr. Day told Petitioner that the decision had been made to terminate her employment after conferring with Messrs. Roberts and Basch. He told Petitioner that he would give her a good reference for future employment because he believed her to be a good employee, who violated a company policy that requires termination. Petitioner did not say anything during the meeting and left EZPAWN. She did not complain to her bosses assembled at the meeting that she believed she had been discriminated against for her gender or national origin. Petitioner testified that no one told her she was terminated for being Puerto Rican or for being a woman. She specifically stated she did not believe she had been terminated because of her Puerto Rican heritage. Petitioner was unable to identify any other store employee who had not been terminated for violating the policy concerning securing a photo ID when showing jewelry with a value of more than $500. She was aware of another employee named Jose in a different one of Respondent’s stores who had been terminated for violation of the same policy. Mr. Roberts confirmed Petitioner’s testimony when he testified that every employee who violated the ID for jewelry policy had been terminated from employment. Petitioner was aware of one other employee named Jessica who left the jewelry case keys on the counter that caused rings to be stolen. Jessica was not terminated, however, because the rings had been recovered. While working at EZPAWN, no employee had made derogatory comments to Petitioner about her gender or national origin. Further, Petitioner had never complained to anyone at EZPAWN about being discriminated against on the basis of her gender or national origin. She testified that, if she needed to make a complaint, she was aware of the process for doing so. She responded “yes” when asked if she knew to call the hotline if she felt she had been discriminated against.
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 Respondent did not commit the “unlawful employment practice” alleged by Petitioner and dismissing Petitioner’s employment discrimination charge. DONE AND ENTERED this 25th day of February, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of February, 2015. COPIES FURNISHED: Erich Schuttauf, Esquire Erich E. Schuttauf Attorney at Law 7901 Kingspointe Parkway, Building 9 Orlando, Florida 32819 (eServed) Laura Steege, Associate General Counsel 2801 Via Fortuna, Suite 460 Austin, Texas 78746 Jason Matthew Leo, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver. In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities. Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber." Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011. For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times. After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must: Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations. (Emphasis in original).3/ Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken tibia and fibula, injuries that required surgery and months of physical therapy to correct. Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter. Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking. Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/ During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/ The charge of race discrimination fares no better. Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for the accident alone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 14th day of August, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 14th day of August, 2014.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed an unlawful employment practice by termination of the Petitioner for discriminatory reasons, based upon her national origin (Panamanian/Hispanic).
Findings Of Fact The Petitioner is an Hispanic female of Panamanian origin. She began working for the Delta Health Group, the Respondent, as a Certified Nursing Assistant (CNA) on or about May 5, 2000. She was generally described by her supervisors as being a good worker. During times pertinent hereto, the Petitioner worked on an evening shift at the Respondent's nursing care facility. One of the residents assigned to her care was L.M., an elderly person. The Petitioner cared for Ms. M. for approximately one year. The Respondent is an employer with more than 15 employees. During times pertinent to this case it operated a nursing care facility located in the vicinity of Destin, Florida, at which the Petitioner was employed as a CNA. The Respondent, in its nursing facility operation, is closely regulated by the State of Florida, Agency for Health Care Administration and, as to its licensed personnel (CNA's, RN's, LPN's, etc.) are subject to licensure and practice standards and regulations of the Department of Health, Board of Nursing, etc. The operative regulations include, as to AHCA, requirements to report any incident involving harm or injury to a nursing home resident, as well as departures from nursing home operational regulation standards and nursing practice standards. There are extensive charting and record- keeping requirements with regard to all care and incidents involving residents. On or about the evening of January 2, 2006, the Petitioner was caring for Ms. M., when Ms. M. told her she wanted to wear some earrings that her grandson had given her. She asked the Petitioner to help her place the earrings in her ears. The Petitioner asked Ms. M. if her ears had been pierced and Ms. M. apparently told her that they had been. The Petitioner put the earrings in Ms. M.'s ears as requested. One went in easily, but the left earring felt somewhat tight. Ms. M. wore the earrings to dinner that night. At bedtime, the Petitioner asked her if she wanted to remove the earrings, but Ms. M. wanted to keep them in. She did ask the Petitioner to remove the earring from her left ear and purportedly asked her to put a string through the hole. The Petitioner maintains that the pierced hole in Ms. M.'s left ear was not opened well enough, and was "clogged-up and dirty." The Petitioner concedes that she put a string through Ms. M.'s left ear by tying it to the left earring and passing the string through the hole, through use of the earring, as Ms. M. purportedly requested. The evidence is conflicting somewhat on this. The Respondent's version of events, it purports to have gleaned from Ms. M., was to the effect that the Petitioner used a needle which she sterilized with a cigarette lighter before passing it through Ms. M.'s ear with the string. The Respondent relies on the out-of-court statement purportedly made by Ms. M., the resident, to its investigating personnel concerning the facts surrounding the piercing (or not) of the ear in question, how the string was inserted, and for what purpose. A hearsay objection was raised about testimony which relied on this statement and the Respondent relies on the hearsay exception for elderly or disabled adults contained in Section 90.803(24), Florida Statutes.1/ Starla Lindaas, LPN, came on duty on January 3, 2006, and noticed the string in Ms. M.'s left earlobe. Ms. Lindaas stated that Ms. M. told her that the Petitioner had pierced her ears. When she examined Ms. M.'s ears, however, she did not notice any redness, irritation, discharge or other issues indicating that any medical problem was occurring. The Risk Manager, Connie Hamilton, knew of and investigated the so-called ear piercing incident, but did not report it to the Department of Children and Family Services, or the Agency for Health Care Administration, because the Petitioner caused no abuse, neglect, or harm to the resident, nor did she intend to do so. The Petitioner was interviewed during the investigation of the incident by the Respondent, on January 3, 2006. The Petitioner related the version of events concerning the ear issue as first described above. The resident, Ms. M., purportedly described them to the Respondent's supervisory personnel as involving the Petitioner "piercing" her ear or ears, by the use of a needle for piercing of her earlobe, inserting the string, or both. CNA's are allowed to place earrings in pierced earlobes for residents, if the ears are already pierced. They are not authorized, and it is beyond their scope of practice, to carry-out ear piercing, however. In any event, the Respondent elected to rely on the version of events related by the resident in her statement, which therefore amounted, in the view of the Respondent, to the Petitioner acting beyond the scope of her CNA practice. She was therefore terminated from her employment on January 3, 2006. The Petitioner's salary at the time of her termination was $31,825.14 annually. During the year of her termination, after her termination, she earned from part-time employment $5,513.28 and also received $6,999.00 in unemployment compensation benefits. The Petitioner adduced testimony concerning a number of instances of what she maintains were disparate treatment occurrences, which she claims amount to national origin discrimination against her status as a Panamanian. She, in essence, claims that the comparator employees, who were all white, or non-Hispanic, were treated disparately by being treated more favorably in purportedly similar instances of employee misconduct and discipline. This testimony applies to both one element of her prima facie case of discrimination based upon national origin, regarding disparate treatment as compared to other employees not of her protected classification, as well as to an attempt to establish an ongoing pattern or pervasiveness of discrimination against Hispanics, as it relates to her attempt to establish discriminatory intent or motivation underlying the employment action of which she complains. This evidence relates to her ultimate burden of persuasion and her burden to show that the employer's reasons were pretextual. In this connection, in May 2004, the Petitioner was reprimanded ("written-up") for cutting a resident's hair, some three months after the event. She maintained that the nurse supervising her asked her to cut the resident's hair. She was written-up for cutting the resident's hair, because it is against policy at the Respondent's facility and beyond the range of practice for a CNA. A beautician is used for all haircutting and similar cosmetic duties at the facility. The Petitioner maintains that one Megan Teibo, a white female, also cut a resident's hair. The Petitioner states that she reported Ms. Teibo to her supervisors, and to the facility's management, but that Ms. Teibo was not disciplined. The Petitioner also contends that it was common practice for employees to be tardy arriving at work for their shift because of the very heavy traffic between Ft. Walton and Destin, the location of the Respondent's facility. She testified that it was routine for employees to call ahead and inform the supervisors that they would be late for work. The Petitioner maintains that she had to do this a number of times and yet she was written-up for being tardy, while other employees who are white were not so reprimanded. Additionally, in February 2004 she was out sick for six days. She had a doctor's excuse justifying her missing work for illness. When she returned to work, however, she contends she was written-up by the administrator and that four or five non-Hispanic employees who where out sick for six or seven days were not written-up. Additionally, Sandy Port, a nurse, was out sick and had a doctor's excuse and was not purportedly written-up. The Respondent's witnesses maintain that all employees, regardless of race or national origin, etc., were treated the same. If they were tardy they were counseled or written-up depending on the situation and the same was true if they were absent from work. They were counseled or "written-up" depending on the circumstances such as repetitiveness and severity. In this connection, the Petitioner only testified to these matters based upon her own opinion and undocumented, uncorroborated conversations she maintained she had with her co- workers, thus purportedly learning that those others who were absent or tardy were not reprimanded or disciplined for it. She offered no evidence, as for instance, obtained through discovery of the Respondent's employee records, that any non-Hispanic, non-Panamanian employees were treated differently for similar conduct involving tardiness (magnitude or degree, etc) and were treated more favorably. The same is true with regard to the category of absences from work for sickness or other reasons. Thus the record testimony in favor of the Petitioner is only the Petitioner's own unsupported opinion concerning these matters. The testimony adduced by the Respondent demonstrates that the Petitioner could not have known directly of any circumstances or details regarding the other employees' disciplinary situations regarding their tardiness or absence records, because she had no access to their records. Thus her testimony is only based on her own subjective opinion and, at most, out-of-court hearsay declarations by non-present, non-appearing, declarants. In July 2004, according to the Petitioner, the Respondent's facility needed CNA's to work the morning shift, which was shorthanded. The Petitioner asked her administrator if she could move from the evening shift to the morning shift and he told her that there were no openings at that time. She contends that white, non-Hispanic employees were, however, allowed to move to those positions, while she was not. In June or July of 2005, Caroline Gatewood, a resident of the Respondent's facility, suffered a fall. Nurse Toni Acosta grabbed her or picked her up without doing an assessment. She started pushing the resident, apparently trying to get her back to her room according to the Petitioner. The incident was reported to the Director of Nursing, and Ms. Acosta was suspended for several days during an internal investigation conducted by the Director of Nursing. The results of that were reported to the Agency for Health Care Administration. Ultimately, however, the nurse was determined to have not been at fault, and was restored to duty and paid for the days she had been suspended without pay. Thus no discipline was actually imposed against her. The Petitioner maintained that about one month after that incident nurse Acosta was accused of verbally abusing the same resident, but no action was taken against her. Ms. Acosta is a white female. The Petitioner merely stated her opinion or her subjective, hearsay-based knowledge regarding the situation, and had no corroborative evidence to show that Ms. Acosta was actually determined to have been guilty of any misconduct about either the pushing incident or the alleged verbal abuse one month later. Thus, it was not persuasively established that Ms. Acosta was disparately and more favorably treated than the Petitioner. In fact, it was not shown that the employees, Acosta and the Petitioner, were similarly situated, by committing similar purported acts of misconduct, concerning which they were allegedly disparately disciplined, or not disciplined, for that matter. In March 2005, the Petitioner was verbally accosted by a cook at the facility by the name of Mark. He apparently became angry and yelled at the Petitioner, using obscenities directed at her. She reported the conduct to the Assistant Director of Nursing, the Director of Nursing, and the Administrator. She maintains that no action was taken against the cook. Here again she is testifying of her own subjective knowledge or belief. She did not establish that she was aware of all facts concerning whether counseling or other disciplinary action may have been taken against the cook. In any event, even if no action was taken, it was not established that the Respondent condoned such conduct or allowed it to recur, once the Respondent knew of it. Such an isolated incident does not constitute the condonation of discriminatory conduct by a co- employee, on the part of a supervisor. Finally, in October 2005 the Petitioner had to go to Panama for several weeks for the funeral of her father and her brother. When she returned to work she maintains that she was written-up for a tardy instance "for three minutes," which occurred approximately a month before that. She maintains that employees "Todd," "Shauna," "Art," and "Deena" had come to work late and were not written-up. Here again this is her unsupported, subjective opinion without reference to any documentation from the Respondent's employee records, for instance. In fact, witness Nicole Coffield, for the Respondent, rebutted this testimony by establishing that these employees, indeed, were disciplined for their tardiness. Moreover, it was not shown that their degree or repetitiveness of tardiness, or the other circumstances surrounding it, were the same or similar to the Petitioner's. It was thus not established that these purported comparator employees indeed were similarly situated to the Petitioner in the circumstances of their conduct and any discipline (or the degree thereof). Additionally, the Petitioner recounted an instance in which she was accused of stealing cash donations, and was suspended for several days. She was accused of taking a "donation bucket" from a nurses station, and the money it contained, for her personal use. The matter was investigated and the Respondent concluded it by accepting the Petitioner's explanation. She had taken the money, with her supervisor's approval, to buy flowers or a gift for a co-worker, who was absent and gravely ill. The Petitioner was exonerated by the Respondent, restored to duty, and paid for the days she was suspended. The suspension during the pendency of the investigation was a routine practice according to the Respondent's established, normal policy concerning disciplinary procedures. In summary, the Petitioner admitted putting the string through the resident's ear and that she did not ask her supervisor for permission. The Respondent investigated the report purportedly made by Ms. M., the resident. The investigation was conducted by the Director of Nursing, the Risk Manager, and the Director of Human Resources. The Petitioner was suspended pending the results of the investigation, according to the Respondent's regular stated policy. In its investigation the Respondent determined to accept the version of events attributed to the statement or statements of Ms. M., the resident, as corroborated by the testimony of Ms. Lindaas, the LPN. Whether or not the resident's statement was true and whether or not it is inadmissible hearsay, the Respondent established that it relied upon that report in deciding the outcome of its investigation. Since the Respondent relied on the statement after corroborating it by Ms. Lindaas's reporting of the events, it established that it had a reasonable basis at the time for believing that the relevant events involving the Petitioner occurred in that way. The Respondent thus determined that the Petitioner had departed from the proper practice and appropriate conduct of a CNA and that this was a "category one offense" under the Respondent's corporate polices and disciplinary procedures. A category one offense requires suspension pending an investigation, and then either termination, or restoration of employment, with payment for the suspended period of time, depending on whether the allegations are determined true or not. In this instance, based largely on Ms. M.'s statement, corroborated by the statements of other personnel, who had observed or conversed with Ms. M., the Respondent determined that the Petitioner had not merely placed the earrings in the resident's ear, but had actually pierced the resident's ear with a needle. This was an inappropriate departure from the standards of conduct and practice of a CNA, which the Respondent established was a category one violation in its disciplinary policy, for which she was therefore terminated.
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 28th day of November, 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 28th day of November, 2007.
The Issue The threshold issue in this case is whether Petitioner knowingly and voluntarily waived all claims, including claims for employment discrimination, against Respondent, his former employer. If he did not, then the question is whether Respondent unlawfully discriminated against Petitioner on the basis of his alleged disability when it terminated his employment.
Findings Of Fact A. Background Facts Petitioner Waldemar Casanova ("Casanova") is a high school graduate who has completed four years of college level courses in the field of business administration. As of the final hearing, he had worked in the airline industry for more than 30 years. In 1987, Casanova began working for Respondent Worldwide Flight Services ("Worldwide"), a ground handling services organization that specializes in, among other things, providing customized cargo, ramp, passenger, and technical services to various passenger and cargo airlines. Casanova was stationed in New York City for about 12 years, providing services to Worldwide's client, American Airlines, at the John Kennedy and LaGuardia Airports. In 1999, Casanova transferred to Florida, where he continued to work in furtherance of a contract between Worldwide and American Airlines to provide passenger services at the Fort Lauderdale Airport. Casanova initially was assigned to work as a Ramp Supervisor, in which position he was responsible for overseeing passenger baggage services. Thereafter, in the spring of 2002, Casanova was assigned to work as a Cabin Services Supervisor, in which position he was responsible for overseeing the cleaning and servicing of aircraft.1 Facts Relating to Casanova's Hernia Surgery In June 2002, Casanova underwent hernia surgery. He took a leave of absence from work to recover. A couple of months later, Casanova's doctor certified that Casanova could return to "light" work duties on September 3, 2002. The doctor's certificate specified that, upon his return to work, Casanova should not lift more than 10 pounds. To accommodate this restriction, when Casanova returned to work in September 2002, Worldwide reassigned him, temporarily, to its administrative office, where Casanova was responsible for reviewing attendance records. Cancellation of the Contract Between American Airlines and Worldwide and the Consequences Thereof On Casanova's Employment with Worldwide. Effective September 15, 2002, American Airlines canceled its ramp-handling/cabin services contract with Worldwide at the Fort Lauderdale Airport. As a result, Worldwide laid off approximately 33 employees in September and October 2002, including Casanova and five or six other supervisors who, like Casanova, were employed in connection with the American Airlines contract. By letter dated September 18, 2002, Worldwide informed Casanova that he was being laid off. In that letter, Worldwide offered Casanova a lump sum severance payment equaling 13 weeks of pay at his base salary in exchange for, and subject to, Casanova's execution of a Severance Agreement and General Release ("Agreement"). The Agreement was enclosed with the September 18, 2002 letter. The release contained in the Agreement provided, in pertinent part: I agree . . . to release Worldwide . . . from any and all claims for relief of any kind, whether known to me or unknown, which in any way arise out of or relate to my employment or the termination of my employment at Worldwide Flight Services, concerning events occurring at any time up to the date of this Agreement, including, but not limited to, any and all claims of discrimination of any kind. This settlement and waiver includes all such claims, whether under any applicable federal law, including but not limited to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Equal Pay Act and Employee Retirement Income Security Act, Older Worker Benefit Protection Act, or under any applicable state or local laws I further agree not to file a claim or suit of any kind against Worldwide Flight Services et al. . . . I further agree not to bring, continue, or maintain any legal proceedings of any nature whatsoever against Worldwide Flight Services et al. before any court, administrative agency, arbitrator or any other tribunal or forum by reason of any such claims, demands, liabilities and/or causes of action, arising out of, relating to or resulting from my employment or termination from employment . . . . In the September 18, 2002, letter, Worldwide also advised Casanova that the decision whether to accept the terms and conditions of the Agreement was completely voluntary, that he should consult with an attorney of his choice before signing the Agreement, and that he could take up to 45 days to consider the Agreement. In addition, Worldwide advised Casanova that, if he had any questions concerning his separation package, he could consult either with Alvin Brown, a human resources representative at Worldwide's corporate headquarters, or Barry Simpson, then General Manager at Worldwide's Fort Lauderdale station. Casanova signed and dated the Agreement on October 2, 2002.2 He then returned the instrument to Worldwide, where Barry Simpson executed the Agreement on the company's behalf, also on October 2. By the terms of the Agreement, Casanova was afforded a period of up to seven days after execution of the Agreement to revoke the acceptance of its terms. At no time during the seven-day revocation period did Casanova notify Worldwide that he wanted to revoke his acceptance of the Agreement. After the expiration of the seven-day revocation period, and in accordance with the terms of the Agreement, Casanova received a lump sum payment of $8,091.20 by check dated October 26, 2002, which sum constituted 13 weeks of severance at Casanova's base salary.3 Since his receipt of this payment, Casanova has neither tendered back nor attempted to tender back the severance payment to Worldwide. At hearing, Casanova admitted that he had understood fully the language and effect of the Agreement, including the release of all claims, and that he knowingly and voluntarily had accepted the terms of the Agreement as well as the benefits provided to him thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing with prejudice Casanova's Petition for Relief because, for valuable consideration, Casanova knowingly and voluntarily released Worldwide of and from any claims arising out of his employment with Worldwide. Alternatively, the final order should declare that Worldwide is not liable to Casanova because (a) he is not a handicapped individual and (b) even if he were a handicapped individual, Worldwide has articulated a legitimate, non-discriminatory reason for Casanova's discharge, which Casanova failed to prove was a pretext for discrimination. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 4th day of February, 2005.
