The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1996.
The Issue Whether Petitioner demonstrated that she was terminated from employment by Respondent, Trend Offset Printing Company (Respondent or Trend), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to an unlawful employment practice.
Findings Of Fact Respondent is, purportedly, a printing company located in Jacksonville, Florida. Specific information as to the company is limited, since the company did not appear at the final hearing. Based on Petitioner’s testimony, it is inferred that Respondent meets the definition of an employer in section 760.02(7), Florida Statutes. On Saturday, September 28, 2019, the printing plant was open, though the office was closed for the weekend. Petitioner was at work that day. On September 28, 2019, Petitioner had some vegetables that she had placed in a personal refrigerator that she kept at work. She intended to take the vegetables to her aunt. Several of the bags in which the vegetables had been placed had broken open. Therefore, after she clocked out of work, Respondent took a box from a trash receptacle located on the plant floor in which to place the vegetables. Unbeknownst to Petitioner, there was a cell phone in the discarded box. She loaded the box, and took it to her aunt’s house. Upon arrival, Petitioner unloaded the box and, at that time, discovered the phone at the bottom. The screen of the phone was cracked and broken. There was no evidence as to how or when the phone was damaged, nor was there any evidence that Petitioner was responsible for the phone’s condition. Petitioner’s aunt recommended that Petitioner discard the damaged phone. Petitioner, wanting to ensure that the phone was returned to its rightful owner, 1 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. regardless of its condition, decided to return the phone on Monday, September 30, 2019, when the office would be open. Upon her return to work on Monday, September 30, 2019, Petitioner immediately turned in the phone to her supervisor, and accurately explained the circumstances of how it came into her possession. On October 2, 2019, Petitioner was presented with a letter of termination from Respondent’s Human Resources Manager, which provided that: After reviewing the pertinent evidence on the evening of Sept 28th, 2019, we have determined to terminate your employment with Trend Offset Printing immediately. Any remaining hours worked and any unused vacation hours will be paid out in full on our next payroll cycle, Oct 11th, 2019. Those worked hours and unused vacation hours will be paid as directed via direct deposit or physical check. I've tried to reach out to you several times but unable to leave a message.[2] Please make arrangements with me to pickup any personal belongings that you may [sic]. If we don't hear from you in a reasonable time your personal belongings will be discarded. The evidence in this case establishes that Petitioner did nothing to warrant her termination. It is unreasonable to think that Petitioner would steal a phone, and then return it at the earliest opportunity. She had no desire or use for a cell phone. She did not try to use it. She had no idea to whom it belonged. That the phone ended up in her possession was entirely accidental. Though there was no evidence as to how or why the phone ended up in the box in the trash, the condition of the phone suggests that it may have been discarded by its owner. In any event, the evidence was persuasive that Petitioner did not intentionally take the phone. 2 The difficulty in reaching Petitioner may have been due to the fact that she did not own a cell phone, did not want a cell phone, and, according to both Petitioner and her sister, did not know how to use a cell phone. The letter of termination was vague, unusually and unnecessarily harsh, and not based on fact. Petitioner testified, for good reason, that “they didn’t treat me fair, at all.” However, Petitioner did not testify or present evidence at the hearing that Respondent’s action was based on discrimination due to race, sex, or age, or was the result of retaliation. As will be discussed herein, the failure to prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the jurisdictional element of an unlawful employment practice complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is 3 Petitioner requested, as relief, that she be reinstated to her previous job with Respondent, because she loved working with her co-workers, who she described as family; and that her name be cleared of the unwarranted allegation of theft. Due to the outcome of this proceeding, the undersigned is unable to recommend Petitioner’s reinstatement. However, this Order is intended, and should be treated, as determining that Petitioner engaged in no theft, or any other conduct vis-á-vis the cell phone, that warranted her termination. RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Annette Johnson’s Petition for Relief, FCHR No. 202126948. DONE AND ENTERED this 8th day of July, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annette Y. Johnson 635 Luna Court Jacksonville, Florida 32205 Trend Offset Printing Company 10301 Busch Drive North Jacksonville, Florida 32218 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
Findings Of Fact Respondent is an employer as that term is defined in Section 760.10, Florida Statutes. Respondent employed Respondent in January 1990. Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida. Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks, Florida. He has written an article entitled "Forts in St. Marks during the War Between the States." Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations. Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work. Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request. In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties. At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles. Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours. In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002. On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office. In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness. On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition. After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time. In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations. In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation. Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay. One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer. During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar. Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay. Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible." Petitioner was aware of Respondent's Internet policy. Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy. Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order. The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties stipulated that they would not re-litigate issues previously litigated at the PERC hearing. The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order. The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason. At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of March, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2005. COPIES FURNISHED: Allen Gerrell, Jr. 10750 Kilcrease way Tallahassee, Florida 32305 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000
The Issue application from Sydney McCray on the basis of race or national
Findings Of Fact The City is an employer under the Florida Civil Rights Act. Mr. McCray is a male African-American, and he is a member of a protected class. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer’s position, he and his sister, Alice Larkins, contacted the City Manager’s office for the purpose of submitting their employment applications. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race. The City disputes Mr. McCray’s claims for several reasons. First, the City provided evidence to contradict Mr. McCray’s position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson’s office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray. Third, in addition to Mr. Whitson’s lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson’s personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson’s office on April 4, 1994. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of “Laborer” with the Public Works Department of the City of Milton. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin’s testimony lacked consistency and lacked credibility. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice. DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997. COPIES FURNISHED: Bruce Committee, Esquire 8870 Thunderbird Drive Pensacola, FL 32514-5661 Post Office Box 586 Milton, FL 32572 Human Relations Commission Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esquire Building F, Suite 240 325 John Knox Road
The Issue Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.
Findings Of Fact Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences. Following foot surgery, Petitioner returned to her position as manager with the same pay. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days. Petitioner did not communicate this information to Respondent or any of its management staff. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.
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 petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX Rulings on Petitioner's Proposed Findings of Fact Paragraph 3 adopted as modified, paragraph 2 recommended order. Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph 5 recommended order. Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant. Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order. Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary. Paragraphs 18 and 19 rejected, conclusionary. COPIES FURNISHED: C. A. Sullivan, Esquire 311 S. Missouri Avenue Clearwater, FL 34616 Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A. 201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. on May 20, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit win, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:49 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $1,200.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this BF aay of Pece hi , 2075. Rie Oi fon Disnew 5. Werpglle Diann S. Wo¥zalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van _ Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this CG day of Sanuary , 20\4_ Prtccln MN Nihbe For Putreln~M, Division of Hotels and Restaurants : “Certified: Article: Number, ; ; 7446 008 S111 5516 1783
