The Issue Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2013.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From 1991 until she resigned in November 2005, Petitioner Gloria J. Bias-Gibbs ("Bias-Gibbs") worked for Respondent Jupiter Medical Center ("JMC") in several different positions, which were mostly clerical in nature. Starting in 2001, and continuing throughout the time period relevant to this case, Bias-Gibbs' job was to perform "chart prep" in the Same Day Surgery unit, which is within JMC's Surgical Services Department. As a chart prep employee, Bias-Gibbs' task was to assemble patients' charts for the medical personnel. During the time she held the chart prep position, Bias-Gibbs was the only person who occupied it. Volunteers had performed the chart prep duties before Bias-Gibbs assumed them, and, after she resigned, volunteers once again were given the chart prep duties to perform. Bias-Gibbs' immediate supervisor in Same Day Surgery was Janet Sparks, the Clinical Manager. Ms. Sparks, in turn, reported to Beth Suriano, the Director of Surgical Services. Ms. Sparks and Ms. Suriano are white women; Bias-Gibbs is a black woman. Not long after she began her tenure as a chart prep, Bias-Gibbs began to believe that she was a victim of racial discrimination at work. In particular, she felt that Ms. Sparks was a racist who repeatedly took adverse action against her solely because she is black. The many allegedly discriminatory acts about which Bias-Gibbs presently complains can be divided into three main categories: (a) denials of her requests for promotion or transfer to another position; (b) Ms. Sparks' conduct; and (c) refusals to provide training, most notably in relation to a computer program known as "Fast Forms," about which Bias-Gibbs alleges she received inadequate instruction. The Requests for Transfer. Between April 16, 2001, and February 22, 2005, Bias-Gibbs submitted sixteen job transfer applications, seeking positions at JMC that she believed were more in keeping with her qualifications than chart prep. None of these applications was approved. Bias-Gibbs does not know the identities, racial characteristics, or qualifications of any of the persons whom JMC hired for the sixteen positions Bias-Gibbs sought. Because she applied for these positions and did not get them, however, Bias-Gibbs feels that she was discriminated against. In addition, Bias-Gibbs once sought to transfer to another position in the Surgical Services Department. The job of Patient Access Specialist was given, however, to another employee of JMC, Joyce Stokes, who assumed the position some time in 2004. Unlike Bias-Gibbs, Ms. Stokes (who happens to be white) had taken a medical terminology course and examination. Because proficiency in medical and surgical terminology is desirable for the position in question, Ms. Stokes was more qualified than Bias-Gibbs to be a Patient Access Specialist. Ms. Sparks' Conduct. Bias-Gibbs' complaints about Janet Sparks, whom she calls a "racist," revolve around allegations that Ms. Sparks forced Bias-Gibbs to sit in a back room while on the job; made racially insensitive remarks concerning Bias-Gibbs' appearance (specifically, her hair); refused to transfer Bias-Gibbs to a different position in the Surgical Services Department (the incident discussed above); kept an overly watchful eye on Bias- Gibbs while she was working; and generally declined to give Bias-Gibbs more challenging assignments in addition to chart prep. Work Station. Bias-Gibbs worked in a room apart from the secretaries in the unit. Her work area was neither "on the floor" nor in public view. While she believes that this "back room" placement was discriminatory, Bias-Gibbs' job as a chart prep employee did not require her to sit "out front." There is no evidence that Bias-Gibbs was singled-out for different treatment regarding her work station. To the contrary, after Bias-Gibbs resigned, the chart prep work continued to be done in the same room where Bias-Gibbs had labored, with the same supplies that were available to Bias- Gibbs while she was employed. Insensitive Remarks. Bias-Gibbs does not believe that she was harassed because of her race. She does complain, however, about derogatory remarks she attributes to Ms. Sparks. According to Bias-Gibbs, when Bias-Gibbs wore her hair in braids to work, Ms. Sparks made comments to the effect that she (Bias- Gibbs) looked like Whoopi Goldberg. In addition, Ms. Sparks once told Bias-Gibbs that she wished she (Ms. Sparks) were black because, if she were black, then it would be easier to take care of her hair. The undersigned takes Bias-Gibbs at her word that these quips were offensive and hurtful to her (although she never told Ms. Sparks that the comments at issue made her uncomfortable). To infer, however, that racial animus motivated these comments (there being no direct evidence of discriminatory intent) would require that the words be given a very mean connotation (and the speaker absolutely no benefit of the doubt) because, viewed objectively, the statements appear to be, at worst, inconsiderate, unkind, or rude. Ultimately, there is insufficient evidence upon which to base a finding (or to infer) that these remarks were anything but workplace banter of the sort that anti-discrimination laws are not designed to reach. "Excessive" Supervision. Bias-Gibbs believes that Ms. Sparks was hypervigilant about watching her work, which made Bias-Gibbs nervous or uncomfortable. Although she attributes this watchfulness to racism, Bias-Gibbs conceded, when pressed, that it was not discriminatory for her supervisor to keep an eye on her at work. There is no evidence, in any event, that Ms. Sparks subjected Bias-Gibbs to closer scrutiny than other employees, much less that she treated Bias-Gibbs differently in this regard based on her race. Underutilization. As an overarching complaint about Ms. Sparks, Bias-Gibbs believes that her supervisor generally refused to allow Bias-Gibbs to perform the kind of work that would make full use of her skills. At most, however, the evidence shows that Ms. Sparks and Bias-Gibbs had different opinions about Bias-Gibbs' potential for taking on other responsibilities. There is no evidence that Ms. Sparks' opinion, which was that Bias-Gibbs should continue working in chart prep, was racially based. Inadequate Training. Bias-Gibbs felt that she was discriminated against because other individuals were given more training than she was on using the Fast Forms computer program. Bias-Gibbs did receive instructions on using Fast Forms, however, which were sufficient to enable her to look up patients' names in the database——the only function of the program that was relevant to, and helpful in the performance of, her duties. The secretaries who used Fast Forms were provided more training in the use of the program, it is true, but their duties were different than Bias- Gibbs's duties, and hence they used Fast Forms for reasons in addition to retrieving names. The secretaries, in short, were provided more training than Bias-Gibbs, not because the latter is black, but because, as secretaries, they needed more training than Bias-Gibbs. The bottom line: there is no persuasive evidence that Bias-Gibbs was given inadequate training——period. At all times during Bias-Gibbs' tenure as an employee of JMC, the hospital had an anti-discrimination policy, an anti- harassment policy, an equal employment policy, and a grievance policy, which were available to all employees. Bias-Gibbs was aware of these policies, yet she never made any allegations of racial discrimination or harassment, disparate racial treatment, or racial comments to Ms. Sparks, Ms. Suriano, or anyone else. Similarly, she never used the grievance procedure to complain that she had been denied a promotion or transfer because of her race. Bias-Gibbs resigned her position at JMC in November of 2005. Although she now maintains that she felt compelled to resign her position because she was denied opportunities to advance at the hospital (and because she needed a job that paid more money), at the time Bias-Gibbs informed others that she was leaving her position in Same Day Surgery because she had gotten a better-paying job at the post office. Bias-Gibbs filed a Charge of Discrimination against JMC at some point on or after July 19, 2006. (She signed the charging document on September 22, 2006, but there is an inscription on the instrument indicating that it was filed on July 19, 2006. There is no evidence explaining this discrepancy.) Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that JMC discriminated unlawfully against Bias-Gibbs on the basis of her race; or it proves, affirmatively, that JMC did not, in all likelihood, unlawfully discriminate against her. Either way, it is determined, as a matter of ultimate fact, that JMC did not violate the civil rights laws in its treatment of Bias-Gibbs while she was an employee of JMC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Bias-Gibbs' Petition for Relief as partially time- barred, and alternatively (and additionally) finding JMC not liable on the merits for racial discrimination. DONE AND ENTERED this 24th day of April, 2008, in Tallahassee, Leon County, Florida. 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 24th day of April, 2008.
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin, race, and perceived disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Pierre is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the School Board was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Pierre began his employment with the School Board in 1996. For nine (9) years, he worked in the Maintenance Department and was promoted three times. His various supervisors rated his work as excellent. At all times material hereto, Mr. Pierre’s co-workers were of various ethnic groups—Haitian, Hispanic, Black/African American, Caucasian, etc. For approximately seven years, Mr. Pierre was under the supervision of Foreman John Bateman. Mr. Bateman considered Mr. Pierre to be a “fabulous” worker and recommended Mr. Pierre for promotion. Subsequent thereto, Mr. Bateman observed a change in Mr. Pierre’s behavior and attitude. Mr. Bateman discussed the changes in Mr. Pierre’s behavior and attitude with his (Mr. Bateman’s) supervisor, James Bass. Such a change in behavior and attitude was exhibited on April 27, 2004. On that date, Mr. Pierre refused to take orders from a temporary leadman, Joe Williams, in the absence of the leadman, Joe Pierrot. Mr. Bass was called to the work-site, and he spoke to Mr. Pierre regarding his refusal to follow the directives of Mr. Williams. After the discussion, Mr. Pierre agreed to follow the directives of Mr. Williams. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day. Mr. Bass testified as to the incident and noted, among other things, in the memorandum that Mr. Pierre had become “very disruptive, creating a hostile environment;” that, after the discussion, Mr. Pierre “returned to his duties without incident;” and that Mr. Pierre was “a very hard worker, but he appears to have ‘fits’ at times . . . seems to intimidate his co-workers with his attitude and overly-aggressive behavior . . . has a tendency to accuse his co-workers of not liking him because of his nationality (Haitian).” Mr. Pierre testified that he did not look at the memorandum and refused to sign it; and that he informed Mr. Bass that he (Mr. Pierre) did not have a “fight” with anyone. Another incident occurred on July 9, 2004. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day of the incident. A worker, Mike Walters, had placed a bottle of water in a refrigerator over night, and the next day, the bottle of water was missing. As Mr. Pierre was walking past Mr. Walters, he (Mr. Walters) commented that someone had taken his bottle of water. Mr. Pierre immediately took offense, became agitated, and refused to calm down, even after Mr. Walters explained to Mr. Pierre that he was making a general statement, not directed at Mr. Pierre. Only after the leadman, Mr. Pierrot, interceded did Mr. Pierre calm down. Mr. Bass included in the memorandum that Mr. Pierre appeared to believe that “everyone was out to get him”; that Mr. Pierre’s co-workers expressed being fearful of him; that Mr. Pierre was advised that such behavior was not acceptable; and that further such behavior would lead to disciplinary action up to and including termination. Mr. Bass signed the memorandum, but Mr. Pierre refused to sign it. Mr. Pierre testified at hearing that the Mr. Walters accused him of “stealing” the water but that he knew nothing about it. The undersigned finds Mr. Pierre’s testimony credible that he (Mr. Pierre) believed that he was being accused of stealing the water but that he knew nothing about the water being stolen. An inference is drawn and a finding of fact is made that Mr. Pierre became upset because of this belief. Mr. Pierre was counseled regarding his behavior. Mr. Bass and the District Maintenance Manager, Mark Dorsett, decided that a re-assignment might benefit Mr. Pierre and his co-workers. As a result, on July 20, 2004, Mr. Pierre was re- assigned from a team of workers, i.e., a crew, responsible for cleaning air conditioning coils to a crew responsible for preventative maintenance tasks. The re-assignment was memorialized in a memorandum dated July 20, 2004. The memorandum provided, among other things, that Mr. Pierre would be monitored for six months and, if the re-assignment did not improve Mr. Pierre’s relationship with his co-workers, “progressive disciplinary action” would be invoked; and that the re-assignment would hopefully improve the relationships. The memorandum was copied to Mr. Pierre. Approximately three months later, however, on October 20, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated October 25, 2004. According to the memorandum, Mr. Pierre had an argument with Sammie Riviera, Mr. Pierre’s work-partner, regarding Mr. Pierre’s tools, which “escalated to a verbal altercation.” Also, the memorandum indicated that, when Mr. Pierre returned to work, after the incident, he began accusing his co-workers of taking his missing tools, which he was unable to locate. Further, the memorandum indicated that the foreman, Jose Martell, advised Mr. Pierre that his behavior would have to “cease immediately.” Moreover, the memorandum indicated that Mr. Martell and Mr. Martell’s supervisor, Diane Caulfield, determined that Mr. Pierre would benefit from the School Board’s Employees Assistance Program (EAP). Mr. Martell and Ms. Caulfield signed the memorandum, but Mr. Pierre did not. Mr. Riviera did not testify at hearing. Mr. Pierre testified that, contrary to what others thought that he believed, he did not believe that Mr. Riviera stole his tools. Mr. Pierre testified that Mr. Riviera used his tools and dropped them on the floor; that he (Mr. Pierre) picked-up the tools and placed them in the truck; that Mr. Riviera attempted to talk to him (Mr. Pierre) but that he (Mr. Pierre) refused to talk to Mr. Riviera. In his testimony, Mr. Pierre did not deny that he and Mr. Riviera argued. On October 26, 2004, Ms. Caulfield presented Mr. Pierre with an EAP Referral Form, which stated the reason for the referral as “Anger Management – no one wanting to work with him.” Ms. Caulfield signed the EAP Referral Form, but Mr. Pierre refused to sign it. At hearing, Mr. Pierre testified that he did not recall Ms. Caulfield’s request for him to attend the EAP. The undersigned finds Mr. Pierre’s testimony to be credible, but such finding does not change or affect the undersigned’s finding that Ms. Caulfield requested Mr. Pierre to attend the EAP. Approximately 20 days later, on November 15, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated November 16, 2004. Mr. Pierre’s work-partner, Mr. Riviera, observed Mr. Pierre handling a device that he (Mr. Pierre) should not have been handling, and Mr. Riviera so advised Mr. Pierre, who became “very agitated” and was “yelling” at Mr. Riviera. Additionally, the memorandum indicated that Mr. Riviera had observed, on occasion, Mr. Pierre mumbling to himself “excessively” and “banging himself against a wall.” Further, Mr. Riviera indicated that such behavior by Mr. Pierre, together with Mr. Pierre’s exhibited temper, caused Mr. Riviera to be “fearful of his personal well-being” while working with Mr. Pierre. Mr. Martell signed the memorandum, but Mr. Pierre did not sign it. Approximately, nine months later, in August 2005, Mr. Pierre visited the Director of Maintenance, Sylvester Davis. Mr. Davis had known Mr. Pierre since Mr. Pierre began working with the School Board and had always encouraged Mr. Pierre to visit him. Mr. Davis observed that Mr. Pierre was upset about something, but Mr. Pierre was unable to explain to Mr. Davis what was happening to him (Mr. Pierre), so Mr. Davis decided to talk to Ms. Caulfield. Mr. Pierre testified that he went to talk to Mr. Davis because he (Mr. Pierre) was not feeling safe at work, believed that he (Mr. Pierre) was being “persecuted,” and believed that Mr. Davis could help. Mr. Davis met with Ms. Caulfield and expressed his concern regarding Mr. Pierre. She explained what had been happening with Mr. Pierre and showed Mr. Davis the memoranda that had accumulated regarding Mr. Pierre’s behavior. Mr. Davis suggested the EAP, and Ms. Caulfield advised him that Mr. Pierre had already been referred to the EAP. After his meeting with Ms. Caulfield, Mr. Davis became concerned regarding the safety of Mr. Pierre and the other workers. Mr. Davis determined that a Fit-For-Duty examination was appropriate. In a memorandum dated September 19, 2005, directed to the School Board’s Special Investigative Unit (SIU), which is within the School Board’s Office of Professional Standards (OPS), Mr. Davis, among other things, provided the SIU with information in order for it to conduct a Fit-For-Duty examination of Mr. Pierre. In the memorandum, Mr. Davis indicated, among other things, that Mr. Pierre’s behavior had gotten progressively worse; that a safety problem had arisen since Mr. Pierre’s work assignments required assistance, but his co-workers were refusing to work with him because of their fear of his reactions; that Mr. Pierre’s co-workers were concerned about him, had respect for him, and viewed him as an excellent worker; and that Mr. Pierre’s co-workers just wanted him to get help. Further, in the memorandum, Mr. Davis requested that a person who could speak Creole be present when the SIU spoke with Mr. Pierre. Moreover, at hearing, Mr. Davis testified that, at no time did he want Mr. Pierre to be terminated, only for him to get the help that he needed to continue to work for the School Board. Mr. Davis viewed the Fit-For-Duty examination as a way to help Mr. Pierre. Mr. Davis’ testimony is found to be credible. The Fit-For-Duty evaluation is a non-disciplinary process wherein the School Board is attempting to help an employee. School Board Policy 4004 provides in pertinent part: RULES Fit for Duty Determination Procedures (emphasis in original) The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. (Supporting Documents) SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home with pay, pending the outcome of the examination. (Letter 1) The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 48 hours. (See Attachment to Letter 1) SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Note: This is a mandatory appointment and failure to attend can result in termination of employment for failure to comply with School Board Policy 4004. (Letters 2 & 3) (emphasis in original) * * * 6. The doctor as delineated in the policy will conduct Pre-evaluation at District expense. Note: a 2nd Opinion will be at the employees expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. (emphasis in original) * * * If employee fails to attend any mandatory appointment with the assigned doctor of the designee assigned to handle the Fitness for Duty Evaluation Case per School Board Policy 4004, then a pre- disciplinary meeting is arranged and employee is notified in writing. (Letter 7) If applicable a recommendation for termination is sent to the School Board of Broward County based on just cause, for insubordination, failure to comply with School Board Policy 4004. (Letter 8) By letter dated September 27, 2005, which was hand- delivered to Mr. Pierre, the Executive Director of OPS, SIU, Joe Melita, notified Mr. Pierre that Mr. Davis had requested a Fit- For-Duty Assessment, pursuant to School Board Policy 4004, and that Mr. Pierre was required to submit to a psychological examination at School Board expense. Mr. Melita provided further in the letter that Mr. Pierre was directed to choose a doctor from a list of doctors, which was attached to the letter, indicating his (Mr. Pierre’s) first and second choice, within two days of receipt of the letter; that the OPS Administrator, Richard Mijon, would schedule the appointment with the physician chosen; and that Mr. Pierre was to not return to work, but remain at home with pay pending the determination of the examination. The letter was addressed to Mr. Pierre at 2450 SW 7th Street, Fort Lauderdale, Florida 33312. An inference is drawn and a finding of fact is made that a perception existed that Mr. Pierre may have been experiencing psychological problems. Additionally, on September 27, 2005, Mr. Mijon met with Mr. Pierre and two of Mr. Pierre’s line supervisors in Mr. Mijon’s office. The line supervisors requested that a Creole-speaking individual also attend to assist Mr. Pierre in communicating only. Mr. Mijon complied with the request and obtained the services of one of his officers, Marc Elias, who was born in Haiti and who spoke Creole, for interpretation purposes only. The aforementioned letter dated September 27, 2005, was hand-delivered to Mr. Pierre at this meeting, and Mr. Mijon reviewed the contents of the letter with Mr. Pierre, who signed the letter and dated his signature (September 27, 2005). The list of physicians attached to the letter included physicians from the counties of Dade [sic], Broward, and Palm Beach. Mr. Pierre testified at hearing that he did not know any of the doctors on the list and, therefore, Mr. Elias circled three of the doctors and marked the order of preference (first, second, and third) for him. Mr. Pierre’s testimony is found to be credible, but also an inference is drawn and a finding is made that the choices were made after consulting with Mr. Pierre. Additionally, on the list, Mr. Pierre provided his contact telephone numbers (home and cell). Mr. Mijon reviewed with Mr. Pierre the choice of doctors, with preferences, and his (Mr. Pierre’s) telephone numbers. Also, Mr. Pierre’s address on the letter dated September 27, 2005, was taken from the School Board’s records. At the meeting, Mr. Pierre did not indicate that his mailing address was incorrect. At the conclusion of the meeting, Mr. Pierre requested that a Creole-speaking doctor perform the Fit-For-Duty examination. Mr. Mijon considered Mr. Pierre’s request reasonable, knew that none of the physicians on list spoke Creole, and indicated to Mr. Pierre that he would hold the list of physicians in abeyance and locate a Creole-speaking doctor through the EAP. On or about October 3, 2005, Mr. Mijon received a list of Creole-speaking psychiatrists and/or psychologists from the EAP. On that same day, Mr. Mijon again obtained the services of Mr. Elias and directed Mr. Elias to contact Mr. Pierre by telephone. Mr. Elias complied and contacted Mr. Pierre by telephone, activating the speakerphone. Mr. Elias participation in the entire telephone conversation was for translation purposes only. Mr. Mijon informed Mr. Pierre that a list of Creole-speaking doctors had been obtained and that Mr. Pierre needed to come to Mr. Mijon’s office on October 5, 2005, to do as he had done previously—choose three doctors, identifying his preferences (one through three), and sign and date the document. Mr. Pierre indicated, during the telephone conversation, that he would not come into Mr. Mijon’s office to do anything, indicating, among other things, that he (Mr. Pierre) was being persecuted. Mr. Mijon informed Mr. Pierre that, if he did not come into his (Mr. Mijon’s) office on October 5, 2005, that he (Mr. Pierre) would be considered to have waived his right to choose from the second list of doctors, and that he (Mr. Mijon) would have no choice but to use the original list chosen by Mr. Pierre, which contained no Creole-speaking doctors, contact Mr. Pierre’s first choice, and schedule an appointment with the first doctor from the original list. On October 5, 2005, Mr. Pierre failed to appear at Mr. Mijon’s office. Mr. Mijon proceeded to schedule an appointment with the doctor from the original list, Laura Hohnecker, Ph.D., who was indicated as Mr. Pierre’s first choice. The appointment was set for October 12, 2005, at Dr. Hohnecker’s office, 1:00 p.m. to 4:30 p.m. On October 6, 2005, Mr. Mijon contacted Mr. Pierre by telephone and again obtained the services of Mr. Elias for translation purposes only. Again, the telephone was placed on speakerphone. Mr. Mijon advised Mr. Pierre that an appointment had been scheduled with Dr. Hohnecker, Mr. Pierre’s first choice from the original list, for the Fit-For-Duty examination, and provided Mr. Pierre with the date, time, address, and telephone number of Dr. Hohnecker. Further, Mr. Mijon informed Mr. Pierre that the appointment was mandatory and that, if he (Mr. Pierre) failed to attend the appointment, disciplinary action may result. In addition to the telephone conversation, Mr. Mijon sent a letter, dated October 6, 2005, by certified and regular U.S. mail to Mr. Pierre, containing the same information that was discussed during the telephone conversation. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. The certified letter was returned but not for being unclaimed. Mr. Pierre failed to appear at Dr. Hohnecker’s office on October 12, 2005, for his appointment for a Fit-For-Duty examination. Due to Mr. Pierre’s failure to appear for his appointment, by letter dated October 14, 2005, Mr. Melita directed Mr. Pierre to appear at his (Mr. Melita’s) office on Tuesday, October 25, 2005, at 9:00 a.m. to meet with Mr. Mijon for a pre-disciplinary meeting, indicating that the purpose of the pre-disciplinary meeting was Mr. Pierre’s insubordination/noncompliance with School Board Policy 4004. The letter further indicated, among other things, that Mr. Pierre had failed to attend the mandatory appointment, as directed, with Dr. Hohnecker for his Fit-For-Duty examination. Moreover, the letter advised Mr. Pierre that his failure to attend the meeting on October 25, 2005, would result in his (Mr. Pierre’s) name being forwarded to the School Board for “termination” of employment. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005, and was sent to Mr. Pierre by certified and regular U.S. mail. The certified letter was returned but not for being unclaimed. Subsequently, by letter dated November 7, 2005, Mr. Melita informed Mr. Pierre that, due to a hurricane, the meeting scheduled for October 25, 2005 was re-scheduled for Monday, November 14, 2005, at 9:00 a.m., restating the purpose for the meeting and the same information contained in the letter dated October 14, 2005. The letter was sent to Mr. Pierre by certified and regular U.S. mail, at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. Mr. Pierre, accompanied by his counsel, attended the meeting on November 14, 2005. Mr. Elias was also present at the meeting for interpretation purposes only. At the meeting, Mr. Pierre denied that he had received a telephone call on October 3, 2005, regarding Mr. Mijon obtaining a list of Creole- speaking doctors for the Fit-For-Duty evaluation and the consequences for him (Mr. Pierre) not attending the meeting scheduled for October 5, 2005, with Mr. Mijon. At hearing, Mr. Pierre also testified that he did not receive the telephone call on October 3, 2005, regarding the meeting on October 5, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. The undersigned makes a finding of fact that Mr. Pierre received the telephone call on October 3, 2005, regarding the meeting on October 25, 2005, and the consequences for his failure to attend. Also, at hearing, Mr. Pierre testified that he did not speak on the telephone with Mr. Mijon and Mr. Elias on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. A finding of fact is made that Mr. Pierre received the aforementioned telephone call on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. At the meeting on November 14, 2005, Mr. Melita determined that Mr. Pierre had presented no justifiable explanation for his (Mr. Pierre’s) failure to attend the appointment with Dr. Hohnecker on October 12, 2005, for the Fit- For-Duty examination. Mr. Melita recommended termination of Mr. Pierre’s employment with the School Board due to insubordination and non-compliance with School Board Policy 4004. By letter dated November 30, 2005, sent by certified and regular U.S. mail, Mr. Melita notified Mr. Pierre, among other things, of the recommendation, the basis for the recommendation, and the date (December 13, 2005) that the recommendation would be submitted to the School Board for approval. Mr. Pierre testified that he did not receive the letter dated November 30, 2005. Regarding Mr. Pierre’s address on the letters from the School Board sent by certified and regular U.S. mail, at hearing, Mr. Pierre testified that, in 2004, he had moved from the address reflected on the letters; that, after he was sent home in September 2005, he was receiving his paychecks from the School Board in the mail at his new 2004 address; and that, around December 2005, he moved to Sarasota, Florida. The evidence demonstrates that the certified letters were returned but fails to demonstrate whether the letters sent by regular U.S. mail were returned or not returned. Furthermore, the evidence demonstrates and Mr. Pierre admits that he and his counsel attended the re-scheduled pre-disciplinary meeting on November 14, 2005, regarding Mr. Pierre’s insubordination/noncompliance with School Board policy 4004, as to Mr. Pierre’s failure to attend the mandatory appointment with Dr. Hohnecker for his Fit-For-Duty examination. Mr. Pierre testified that he and his counsel became aware of the meeting on November 14, 2005, as a result of his counsel contacting Mr. Melita, attempting to discover what issue the School Board had with Mr. Pierre. The undersigned finds Mr. Pierre’s testimony credible regarding his addresses for 2004 and 2005. However, the undersigned further finds that the failure of Mr. Pierre to advise Mr. Mijon of his (Mr. Pierre’s) correct address at the meeting on September 27, 2005 was unreasonable. Mr. Pierre has not been employed since his termination from the School Board. Mr. Pierre has been consistently seeking employment since his termination from the School Board. At the time of the hearing, Mr. Pierre was suffering from hypertension and depression for which is taking medication for both. The evidence fails to demonstrate that Mr. Pierre was suffering from these illnesses or taking medication for them at the time that he was employed with the School Board. The evidence fails to demonstrate that similarly situated employees of the School Board were treated differently or more favorably.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Antoine Daniel Pierre against the Broward County School Board. DONE AND ENTERED this 31st day of July, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of July, 2008.
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 Background At all times material to this proceeding, Petitioner, an African-American male, was employed in the Public Works Department ("Public Works") of the City of Pompano Beach ("the City" or "Respondent"). In or around 1995, Petitioner——who had worked for the City since 1981——was promoted to a superintendent position and assigned to oversee two separate divisions within Public Works: the streets division and the grounds division. Although Petitioner was described in personnel documents as "Streets Superintendent," his functional title within Public Works was "Streets and Grounds Superintendent." In September 2006, the City hired Robert McCaughan——a retired civil engineering officer with the United States Air Force——to serve as its new Director of Public Works, the top position within the department. Mr. McCaughan is Caucasian. At the time of his hire (and until June 22, 2009, when a reorganization occurred), Public Works was structured such that four superintendents——all Caucasian with the exception of Petitioner——reported to Mr. McCaughan: Petitioner, who headed the streets and grounds divisions and oversaw approximately 100 employees, including five supervisors; Roger Palermo, the superintendent of building maintenance, who had roughly 15 employees under his authority, including one supervisor; Mark Stevens, the superintendent of the fleet maintenance division, who oversaw approximately ten employees, including one foreman; and Steve Rocco, the airpark manager, who had six employees under his authority, including one supervisor. Soon after he began his employment with the City, Mr. McCaughan became aware——through the receipt of complaints from various employees, which Mr. McCaughan accepted as credible——of issues with Petitioner's management techniques and ability to behave amicably with others in the workplace. For instance, Arnold McRay, who reported directly to Petitioner and served as the grounds supervisor, complained to Mr. McCaughan that Petitioner often exhibited a dictatorial management style that made it difficult to get work done. Mr. McRay, who is African-American, also reported that Petitioner would often talk down to him and micromanage leave approvals. In addition to Mr. McRay's comments, Mr. McCaughan also received complaints from two other supervisors under Petitioner's authority: Russell Ketchum, the solid waste supervisor, who advised that Petitioner exhibited a lack of communication and engaged in behavior that made it difficult to complete tasks; and Dick Tench, the grounds supervisor, who indicated that Petitioner, on at least one occasion, interfered with the discipline of an employee under his (Mr. Tench's) supervision. Significantly, Mr. McRay, Mr. Tench, and Mr. Ketchum also complained that Petitioner had ordered them not to speak directly to Mr. McCaughan about work matters. Although Petitioner, when asked, denied that he made such an order, it was clear to Mr. McCaughan that Petitioner, in one way or another, had created the distinct impression among the complaining supervisors that work issues could only be addressed with him (Petitioner).3/ Reorganization of Public Works Beginning in 2007, the City began to face a budgetary crisis that resulted from declining tax revenues and increasing costs. As a result, a strict hiring freeze (that continued through 2010) was instituted, in which most vacant positions throughout the City remained unfilled. Petitioner, like all other managers within the City, was prohibited from filling any position that was not designated as essential.4 / In late 2008 or early 2009, the City Manager at that time, Keith Chadwell, considered a possible merger of Public Works with the City's Parks and Recreation Department. Although the merger concept was ultimately rejected, Mr. McCaughan decided, in an effort to improve efficiency, to move forward with a reorganization of Public Works. Pursuant to the reorganization, which was implemented on June 22, 2009, the grounds and solid waste divisions were removed from Petitioner's supervision, which reduced the number of employees under his charge by approximately 80 percent (from more than 100 employees to 20). As a consequence, three of the four supervisors who previously reported to Petitioner—— Mr. McRay, Mr. Tench, and Mr. Ketchum, each of whom had lodged complaints about Petitioner——were reassigned to Mr. McCaughan's direct supervision. Petitioner retained his status as a superintendent, however, and suffered no loss of pay or benefits. On June 22, 2009, Mr. McCaughan informed Petitioner of the reorganization, and, on the following day, provided Petitioner with a detailed organizational chart that placed Petitioner on notice that his supervisory duties had been diminished in the manner described above. As part of the overall goal to enhance efficiency, Mr. McCaughan also decided to change the manner in which clerical services were provided within the streets, grounds, and solid waste divisions. In particular, Mr. McCaughan created a central pool of clerical workers that served the three divisions as a whole——as opposed to the previous arrangement, where superintendents such as Petitioner were each assigned assistants of their own. Under the new system, management employees that required clerical help would contact the head secretary, Ruth Bobbi, who in turn would assign the task to a member of the secretarial pool. There is no credible evidence that the reorganization of the clerical staff caused Petitioner to suffer any meaningful deprivation of secretarial services. On the contrary, the evidence demonstrates that Petitioner was at all times authorized to bring assignments to Ms. Bobbi to be distributed to a secretary in the general pool. Post-Reorganization Events Needless to say, Petitioner disagreed vehemently with Mr. McCaughan's reorganization of the Public Works Department. Within a week of the restructuring, Petitioner filed a written complaint with Phyllis Korab, the Interim City Manager at that time, which alleged that Mr. McCaughan and Michael Smith——the Director of Human Resources for the City, who had no authority whatsoever over Petitioner——had discriminated against him. Because the City's Director of Human Resources was specifically named in the complaint, Ms. Korab decided to retain an outside investigator to examine Petitioner's allegations. Ms. Korab ultimately hired Ms. Rita Craig (of "The Craig Group"), who had previously served as the head of the Florida Commission on Human Relations. At the conclusion of her investigation, Ms. Craig recommended to the City that Petitioner's office be relocated closer to Mr. McCaughan's office——to improve communications——and away from employees with whom Petitioner did not get along.5 / Mr. McCaughan ultimately accepted the suggestion and moved Petitioner's office to the public works administration building, the location where his (Mr. McCaughan's) office was housed. In early 2010, Mr. McCaughan conducted Petitioner's annual performance evaluation, which was finalized on March 24, 2011, and reviewed by Petitioner one week later. In the evaluation, Mr. McCaughan assessed Petitioner's overall performance as "very effective," the second highest of five possible ratings, and one ranking higher than "fully effective," which the City equates to a "clearly satisfactory level of achievement." In other words, Petitioner's overall performance was rated as exceeding the City's requirements.6 / Ostracism During his final hearing testimony in this proceeding, Petitioner complained that some employees within the City refused to speak with him after the reorganization of Public Works. Petitioner's testimony on this issue, which was vague at best, is credited only to the extent that Helen Gray, the city engineer, ceased communications with Petitioner following the restructuring.
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 25th day of January, 2012, 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 25th day of January, 2012.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2018.
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black male. Respondent is a staffing company that contracts with third party employers. Over 80 percent of Respondent’s employees are Black. After Respondent matches a candidate with a job opening, the third-party employer interviews the candidate for employment. If the candidate is employed by the third party, the employee must abide by the third-party employer’s policies as well as the employment policies of Respondent. Petitioner was hired by Respondent some time in January 2008. Respondent requires all employees to notify Respondent of his or her absence prior to that employee’s scheduled report time for their employment. Respondent also requires that all employees report to work at their scheduled report time. Failure to either call in or show up for work is known as a ‘no call/no show’. The employment policies of Respondent reflect that a “no call/no show” is grounds for termination. Petitioner received a copy of Respondent’s employee handbook, which included the “no call/no show” provision. He was also aware of Respondent’s “no call/no show” policy. Around January 14, 2008, Respondent successfully matched Petitioner with a position at BR Williams Trucking Company (BR Williams). Like Respondent, BR Williams maintains a policy of termination when an employee fails to show up for work or does not call in prior to the start of the work day to report their absence. Petitioner’s scheduled report time for BR Williams was 7:00 a.m. On March 3, 2008, Petitioner contacted Respondent’s Regional Sales Manager, Diane Jarrett, to report that he had overheard a racial slur that a White employee, Harry Hingson, had made to another employee. Like Petitioner, Mr. Hingson had been placed at BR Williams by Respondent and was an employee of both Respondent and BR Williams. Ms. Jarrett sent Respondent’s Human Resources Assistant, Annis Herndon, to BR Williams to terminate Mr. Hingson for having made the racial slur. She met with Mr. Wilkinson, BR Williams’ manager. Mr. Hingson was terminated from BR Williams. Neither Ms. Jarrett nor Ms. Herndon disclosed that Petitioner had reported Mr. Hingson’s racial slur to her. After the termination, Mr. Wilkinson mentioned to a group of employees, including Petitioner, that he hated to fire Mr. Hingson because “everybody needs a job.” The evidence did not demonstrate that Mr. Wilkinson said that “once he found out who did this, they will pay.” Petitioner felt that Mr. Wilkinson was talking to him or targeting him because Mr. Wilkinson looked him in the eyes during the meeting. Mr. Wilkinson did not testify at the hearing. As a consequence, there is no competent evidence regarding Mr. Wilkinson’s intent showing any look he may or may not have given Petitioner. On March 24, 2008, Petitioner worked his regular shift at BR Williams. On the evening of March 24, 2008, Petitioner was arrested for driving while intoxicated (DUI) and was held in jail overnight. He was released two days later on March 26, 2008. On March 25, 2008, Petitioner was scheduled to begin his shift at 7 a.m. Petitioner did not report to work as scheduled because he was in jail. Petitioner also did not call Respondent to report his absence prior to the beginning of his shift or during the morning of March 25, 2008. Mr. Wilkinson called Respondent around 9:00 a.m. and reported that Petitioner was not at work and had not called in. He did not know where Petitioner was. Respondent could not locate Petitioner at his home. Mr. Wilkinson instructed Respondent that if he or Respondent did not hear from Petitioner before noon, Petitioner was terminated for not showing up at work and not calling in. About 1:00 p.m., after Petitioner was terminated by BR Williams, Petitioner called Respondent collect from jail. He was advised that he had been terminated from BR Williams. After speaking with Petitioner, Respondent called BR Williams to report that Petitioner had called in after noon and that she had told him that he had been terminated from BR Williams. Respondent did not tell Petitioner that he was terminated from Cardinal Staffing. BR Williams’ decision to terminate Petitioner was not based on his race or his complaint regarding Mr. Hingson’s racial slur. Indeed, there was no competent evidence to suggest that Petitioner was terminated from BR Williams for any reason other than he was in jail, and did not report to work as scheduled. Petitioner was not terminated from Cardinal Staffing. Petitioner left a message on Respondent’s answering machine on March 27 or March 28, 2008. Return calls by Respondent could not be left at the numbers that Respondent had for Petitioner. He did not contact Respondent again until August 2008, at which time there were no positions available for him. Importantly, Petitioner was not terminated from Respondent. As with all Respondent’s employees, Petitioner had the responsibility of calling Respondent as often as possible to check if other employment opportunities were available. If Petitioner had contacted Respondent to seek placement during April–June, 2008, and if a placement for which Petitioner was qualified had been available, Respondent would have sent him for an interview with the prospective employer. Indeed, it was Petitioner’s lack of action that caused him to miss any employment opportunities that may have been available to him during April – June, 2008. After August 2008, Petitioner did not contact Respondent to seek other employment opportunities. Petitioner identified two non-minority employees that were terminated from their third-party employer jobs and received new assignments with another of Respondent’s clients. The two employees were Jason Whibble and Sherita Cheshire. Neither of these employees was similarly situated to Petitioner. Mr. Whibble was terminated for having a felony conviction involving multiple traffic tickets. Ms. Cheshire was terminated because she could not perform her job duties. After termination, both employees called in on a daily or weekly basis to check to see if any job openings were available. In this case, Petitioner was terminated for a very different reason from BR Williams. Petitioner also did not frequently call Respondent to check for job openings that might be available to him. Indeed, Petitioner has not identified any similarly situated non-Black employee of Respondent’s who was terminated from an employment assignment on the basis of an employer’s “no call/no show” policy and was treated more favorably than Petitioner. The evidence was clear that Petitioner was not terminated from Cardinal Staffing and failed to maintain frequent contact with them. Clearly, Respondent did not discriminate against Petitioner. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009. COPIES FURNISHED: Walter Jan Pietruszka, Esquire Shumaker Loop & Kendrick 101 East Kennedy Boulevard, Suite 2800 Tampa, Florida 33602 Melvin Lee Butler 40 Jack Scott Road Quincy, Florida 32351 Robert E. Larkin, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent imposed an unlawful employment practice upon the Petitioner, whether the Petitioner has a disability and was subjected to disability discrimination in the course of the purported unlawful employment practice or event.
Findings Of Fact The Respondent Willstaff Crystal, Inc., (Willstaff) is engaged in the business of employee staffing for client companies who need employees. The process essentially concerts of prospective employees submitting employment applications for job placement to Willstaff. Willstaff then seeks to place that person as a hired employee with a firm or company which is one of its clients, (i.e., has requested that Willstaff assist it in finding employees for its business). On or about August 18, 2003, the Petitioner, Janet Shaffer, made application with Willstaff for employment placement. The application was not for employment as an employee of Willstaff, but rather for placement in a job with a company which might be a client of Willstaff. After placing Ms. Shaffer in two temporary job assignments with two different employers, she was assigned a job placement with Moldex Inc., on about October 27, 2003. Her duties at Moldex consisted of performing assembly line-type duties including cutting rubber hoses using an "air Knife." The placement and job assignments that Willstaff had secured for Ms. Shaffer during 2003 were designed to be temporary employment assignments. At some point during her shift, while employed with Moldex, Ms. Shaffer was required to place a box on a shelf above her head. She had some difficulty doing so, she says, because of her arm or shoulder injury, and requested assistance from a co-worker. Ms. Shaffer testified at hearing that due to a previous shoulder injury she is unable to lift her right arm above shoulder level. Her shoulder causes her pain, but she was not currently under a doctors care and her injury did not limit any major life activities. In any event after working only two days with Moldex, Inc., she was released from employment at Moldex, Inc.'s request due to low job productivity. Ms. Shaffer believes according to her testimony, that Moldex, Inc., terminated her as a proximate result of her requesting assistance from a co-worker due to her inability to reach above shoulder level because of her pre- existing shoulder injury. Her testimony establishes that if she an unlawful employment practice it was at the hands of Moldex, Inc.; not Willstaff. She indicated quite clearly in her testimony that she had no intent to pursue a claim against Willstaff, but only against Moldex, Inc.; because she believed that Moldex, Inc.; had terminated her, due to her limitation because of her shoulder injury. She stated that she named Willstaff as the Respondent in this case by her Petition for Relief because she was instructed to do so by some unknown individual who helped her prepare the Petition for Relief. Ursula Maurice testified as a representative of Willstaff. Her testimony establishes that Willstaff had no knowledge that Ms. Shaffer suffered from a disability. No adverse employment action was ever taken by Willstaff against the Petitioner. In fact, the Petitioner was never an employee of Willstaff. Moreover, Willstaff has an "EEO policy" in place and properly noticed its employees and Ms. Shaffer had never availed herself of it or made any formal complaint to anyone at Willstaff regarding discrimination, whether by Moldex, Inc. or any other entity. In any event, the Petitioner's own testimony establishes that she has no physical or mental impairment that substantially limits one or more of her major life activities. She also failed to established that she was qualified for the job in question with or without reasonable accommodations, that is, the job she briefly occupied at Moldex, Inc. She did establish that she suffered an adverse employment action or decision because she was "let go" from her employment at Moldex, Inc. She did not establish clearly that Moldex, Inc., had any knowledge of her disability. Finally, and most to the point, the Petitioner has not established, and freely admits, that she was not an employee of Willstaff. Therefore, she did not suffer an adverse employment action or decision made by Willstaff. She clearly stated in her testimony that her complaint is properly against Moldex, Inc. Nonetheless, Moldex, Inc., has not been served with a petition, has not been made a party respondent, and has not been noticed of this proceeding, including the hearing. Therefore it is not legally charged with having to defend itself at this juncture, as to any employment decision it may have made regarding the Petitioner in this proceeding.
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 denying the Petition its entirety. DONE AND ENTERED this 17th day of June, 2005, 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 17th day of June, 2005. COPIES FURNISHED: Janet Shaffer 6401 Da Lisa Road Milton, Florida 32583 John T. Bender, Esquire McFadden, Lyon & Rouse, L.L.C. 718 Downtowner Boulevard Mobile, Alabama 36609 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, in Tallahassee, Leon County, Florida. 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 23rd day of July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and, whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Progress Energy Corporation, is a public utility which provides electrical power. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent in October 1980. Petitioner was finally discharged from her employment on December 12, 2003. During her period of employment, she received various promotions and eventually became a service coordinator. She worked at the Jamestown Operations Center and was responsible for designing electrical power services and customer coordination. In 1992, Petitioner was terminated and re-hired at a lower position as discussed hereinafter. Steven McKinnie became Petitioner's supervisor in March 2002. While Petitioner's performance was adequate, Mr. McKinnie received complaints from both co-employees and customers about Petitioner's work performance. As a result, he engaged in private counseling sessions with Petitioner as he did with other employees. Concerned about Petitioner's performance, Mr. McKinnie consulted with Respondent's Department of Human Resources regarding the advisability of employing a "360 survey" as a tool for improving Petitioner's performance. A "360 survey" provides an employee with confidential assessments made by co-employees as a tool for self-improvement. A "360 survey" is not a disciplinary tool, nor does it effect an employees status. After receiving Petitioner's approval to conduct the "360 survey," on March 6, 2003, Mr. McKinnie distributed the survey questionnaire to Petitioner's co-employees. On the evening of March 6, 2003, Petitioner e-mailed Mr. McKinnie objecting to the "360 survey." The following day, March 7, 2003, the Jamestown Operations Center staff, including Petitioner and Mr. McKinnie, were in Deland, Florida, for a "two c's" (compliments and concerns) meeting. This is another human resources' tool. This gives employees the opportunity to express their concerns and for management to respond to those concerns. During the "c and c" meeting, Petitioner voiced her complaint about the "360 survey." This was Mr. McKinnie's first notice of her objection. She also complained that Mr. McKinnie treated employees as if they were in high school and intimidated them (or words to that effect). No mention was made of racial or sexual discrimination. The results of the "360 survey" were offered to Petitioner as a self-improvement tool. The survey was not included in her performance evaluation nor did it effect her pay. In early December 2003, Respondent's management received a complaint from a co-employee that Petitioner was using Respondent's postage machine for personal use. Shortly thereafter, Sandra Shields, conducted an investigation of the alleged impropriety. Respondent's postage machines and the cost of mailing are to be used for Respondent's business purposes only, not for personal use. During the investigation, Petitioner asserted that other employees similarly used the postage machine for personal use. She declined to identify any employees. The investigation failed to corroborated Petitioner's assertion. Petitioner had two employment-related incidents of theft. In 1990, she was arrested during her lunch period and incarcerated for retail theft. The company vehicle she was driving was impounded. She entered a pre-trial diversion program and admitted the theft. Her arrest and record of pre-trail diversion was made a part of her employment record. On a second occasion, in June 1992, Petitioner received a letter of reprimand because she "misused her position as an Engineering Technician for personal gain." She had produced and submitted engineering drawings for underground cable installation at the residence of a family member. The letter of reprimand noted: "This type of action cannot be tolerated. Further violations of this nature will result in disciplinary action, up to and including termination." As noted on the letter of reprimand, Petitioner did not agree with it (the letter). Incidental to this incident, Petitioner was terminated. She grieved her termination and was rehired at a lower paid position. The letter of reprimand was placed in her employment record. As a result of Petitioner's misuse of the postage meter, aggravated by the two previous incidents of theft, Petitioner was terminated. Subsequent to her termination, Petitioner complained to the Respondent's "Ethics Line" and invoked Respondent's dispute resolution process to contest her termination. Additional investigations did not change the facts or the outcome. At the hearing, Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33601 Curtis B. Lee, Esquire 37 North Orange Avenue, Suite 500 Post Office Box 3412 Orlando, Florida 32802 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
