The Issue The issues in this case are whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of race and whether Respondent retaliated against Petitioner in violation of the Civil Rights Act.
Findings Of Fact GCSO is a law enforcement agency in Gadsden County, Florida, which has approximately 129 employees. GCSO provides law enforcement services to Gadsden County. Sheriff Morris Young (“Sheriff Young”)(black male) is the chief law enforcement officer for GCSO. On February 5, 2005, Petitioner began employment with GCSO as a part-time reserve deputy. Petitioner is a black male. On March 9, 2012, Petitioner was arrested in Crisp County, Georgia, and charged with Possession of Marijuana and Open Container. On March 12, 2012, Captain Robert Barkley (Barkley) (black male) followed GCSO policy and suspended Petitioner because of his arrest. The hand-delivered notice of suspension informed Petitioner that his suspension was until further review and detailed the two department policies that were violated by his arrest: General Order Chapter 3.0 Section 3a(35), Standard of Conduct/Integrity; and General Order Chapter 2.0 Section 2.2 (E), Obedience to Laws and Regulations. Law enforcement officers are required to be of good moral character. GCSO is required to maintain the employment status of each law enforcement officer and notify Florida Department of Law Enforcement (“FDLE”) of new hires or separations of employment within the agency through the Automated Management Training System (“AMTS”). Each officer has a global profile in the AMTS that is updated according to employment status. GCSO’s human resource department manually updates the employment status for global profiles. After Petitioner’s arrest, GCSO updated Petitioner’s employment status on his global profile several times. The first update was on April 3, 2012. GCSO Human Resource Manager Ann Marie Presnell (“Presnell”) completed an Affidavit of Separation for FDLE’s AMTS indicating Petitioner’s separation date of March 9, 2012, the last day Williams worked with the agency. Presnell also changed Williams’ status to suspension in the separation category. After Petitioner was suspended, GCSO followed policy and started an internal affairs investigation to investigate Petitioner’s arrest allegations. Investigator Ulysses Jenkins (black male) was assigned to conduct the internal affairs investigation. FDLE requires an internal investigation when an officer is arrested and that all documentation obtained during the investigation is forwarded to FDLE for review. Interviewing the accused officer is part of the investigation. GCSO policy violations can take place even if the accused officer is not prosecuted. On May 1, 2012, the criminal citation/warrant charging Petitioner with Possession of Marijuana and Open Container was dismissed. On June 1, 2012, during GCSO’s internal investigation and unbeknownst to GCSO, Petitioner was hired as a part-time law enforcement officer by the City of Midway Police Department. GCSO follows the dual-office holding policy which prohibits law enforcement officers from working for two different agencies at one time under Article II, section (5)(a) of the Florida Constitution. On July 9, 2012, by memorandum, Investigator Jenkins updated Sheriff Morris Young on the status of Petitioner’s internal affairs investigation. The memorandum stated: During the week of May 25th, 2012 I spoke with Reserve Deputy Ronnie Williams two times in reference to the status of his position here at the Gadsden County Sheriff’s Office in lieu of his arrest in Georgia on March 9th, 2012. Williams was informed that, per FDLE Standards and Training, an Internal Affairs Investigation must be completed and any documents pertaining to his case must be forwarded to FDLE for review. Williams stated that he was going out of town and would get with me upon his return the following week. To the date of this memorandum, Williams has not contacted this office to comp[l]ete the investigation in the events surrounding his arrest. It should be noted that his case was dismissed; however, FDLE requires that he be cleared administratively before returning. His failure to comply with the requirements of FDLE and failing to contact this office to arrange the internal investigation keeps his law enforcement standards in a suspended status. Due to his failure to comply I recommend that he be terminated as a reserve deputy with this agency. On July 11, 2012, Investigator Jenkins was finally able to serve Petitioner the Notification of Agency Policy Violation Form and the Confidentiality Notice. Petitioner signed a receipt for each. The notice informed Petitioner of the agency policy violations relevant in the investigation and that Petitioner “will be questioned . . . as a subject of an internal affairs investigation.” Over the next several months, Petitioner contacted various officers at GCSO but did not follow-up with Investigator Jenkins for his internal affairs investigation interview.1/ On October 26, 2012, Investigator Jenkins formally closed Petitioner’s internal affairs investigation by letter to Sheriff Young, Commander of Bureau of Internal Affairs Captain Barkley, and Petitioner’s personnel file. Investigator Jenkins detailed in the letter how Petitioner failed to comply with agency policy and respond to requests to answer questions for the internal affairs investigation. Investigator Jenkins also reported in the letter that “Mr. Williams left this agency and began working with another.” After GCSO found out Petitioner was working for Midway Police Department, GCSO deemed Petitioner’s employment status a voluntary separation because Petitioner initiated the separation when he sought and started employment elsewhere. On January 7, 2013, FDLE notified Sheriff Young by letter that the Criminal Justice Standards and Training Commission had completed the review of the information submitted regarding Williams’ arrest and found no basis for any further action. The letter also provided that “[d]eterminations by the Commission are separate and distinct from any employing agency action, and in no way reflects upon their investigation, findings, conclusions, and/or disciplinary action.” GCSO also received a memo dated January 7, 2013, from FDLE’s Bureau of Standards, Professional Compliance Section recommending a no cause determination regarding Williams’ arrest charges since Petitioner was exonerated after the internal affairs investigation completed by Midway Police Department on May 28, 2012. The memo recommended that Williams’ case be closed and designated Petitioner’s reason for separation as a resignation with a separation date of March 9, 2012. On March 25, 2013, Presnell updated the Petitioner’s global profile status and checked the box voluntary separation while being investigated, not involving a moral character violation. That same day Presnell sent a letter dated March 25, 2013, to FDLE amending Williams’ Affidavit of Separation. The amended affidavit changed Williams’ global profile status by voiding the previous one and checking the box voluntary separation while being investigated for violation of moral character standards defined in Florida Administrative Code Rule 11B-27.0011. The cover letter stated: The separation reason for Ronnie Williams was entered incorrectly today. I have enclosed the original CJSTC 61 and also an amended one stating the correct separation reason. Your assistance in making the necessary changes as shown on the amended form will be greatly appreciated. GCSO followed the same policies for the two white male part-time reservists that had criminal-related trouble as GCSO did for Williams after his arrest. Ronnie Albritton (“Albritton”) was a white part-time reserve deputy suspended after an arrest pending an investigation and was eventually terminated for a moral conduct violation. Gary Lehr (“Lehr”) was another white reserve deputy that was arrested and simply terminated for moral conduct violations. Like Williams, his charges were later dropped, but GCSO’s reason for separation in the AMTS global profile states that the separation is for moral conduct violations. On January 21, 2014, Williams filed a discrimination complaint with the FCHR alleging discrimination and retaliation. FCHR found “no reasonable cause exists to believe that an unlawful employment practice occurred,” and Petitioner contested FCHR’s decision. During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of race discrimination. Instead, Williams attempted to prove his case by comparators that were unlike Petitioner. Neither Albritton nor Lehr refused to cooperate and submit to an interview during the internal affairs investigation nor did they voluntarily go and start working for another law enforcement agency pending the investigation. Petitioner’s approach to compare himself with Albritton and Lehr fails for they are not valid comparators for the purposes of establishing a prima facie case of race discrimination. Moreover, Williams’ voluntary separation from GCSO did not have anything to do with his race. Additionally, no evidence was presented that any retaliation took place against Williams.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety due to lack of jurisdiction. DONE AND ENTERED this 29th day of October, 2015, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 October, 2015.
The Issue The issue for determination in this proceeding is whether the denial of an application for employment constitutes unlawful discrimination against Petitioner.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is 1800 Forest Hill Boulevard, West Palm Beach, Florida, 33406. Respondent employs approximately 167 employees. A substantial number of Respondent's employees are certified nursing assistants ("CNA"). Petitioner was denied employment as a CNA by Respondent on July 18, 1991. Petitioner was not denied employment due to his disability of alcohol addiction. Petitioner received an average rating on 11 of 12 interview categories. Petitioner received a below average rating on his personality evaluation. He displayed loud and inappropriate behavior during the interview. He gave his "business card" to two female employees and asked them to call him. A background investigation indicated that Petitioner had been arrested for driving while intoxicated and had a bad credit history. Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's application for employment. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's application for employment was based upon Petitioner's failure to satisfy Respondent of Petitioner's competence to satisfy his job requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603 250 Australian Avenue South West Palm Beach, Florida 33401 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Richard Denton 729 N. Ridge Road, Apt. 6 Lantana, Florida 33461
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
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 Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 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 Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
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 finding: that Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
The Issue Whether Petitioner was discriminated against by the Respondent based on race, and/or retaliated against due to the filing of a charge of discrimination with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Ronald Wilson, is an African-American male. Petitioner was employed with TMH on June 21, 1999, as an environmental services technician. On January 19, 2001, Petitioner received a disciplinary corrective action for discourtesy to a hospital visitor who had complained about Petitioner’s rude and overbearing behavior towards her in a visitor’s waiting area. After admitting the essential facts, Petitioner was suspended for two days for this infraction. On June 27, 2001, Petitioner filed a charge of discrimination with the FCHR, alleging he was wrongfully suspended because of his race. On September 5, 2001, Petitioner was told that his loan application with TMH Federal Credit Union had been denied. Petitioner told a credit union employee, Grace Chambers, that “God doesn’t appreciate people being treated this way” and “Someone is going to have some bad luck,” or words to that effect, when she advised him that his application had been denied. Although Petitioner was speaking metaphysically and did not intend to threaten Ms. Chambers, Ms. Chambers was upset by Petitioner’s comment, perceived Petitioner's comment as a threat and reported it to her supervisor, Marion McCaskey, President of the TMH Credit Union. McCaskey and Chambers, in turn reported Petitioner's threat to Charles Garner, Director of Security at TMH. Ms. McCaskey also reported that Petitioner was known for being unduly persistent in obtaining approval for a loan to the point she had become uncomfortable, albeit not physically threatened, in dealing with Petitioner. Mr. Garner reported Petitioner's conduct to his supervisor, Ron Dorsey. On September 6, 2001, Mr. Dorsey filled out a disciplinary action form recommending Petitioner's discharge because of his comment to Ms. Chambers. Because of Petitioner’s disciplinary history of insubordination and discourtesy, the recommendation was approved by TMH Human Resources, and Petitioner was given notice of his discharge on December 11, 2001. TMH's policy prohibits discourtesy to visitors and other employees, and threats to co-workers. Both of these violations are grounds for discharge. Petitioner produced no evidence that any other non- minority employee was charged with breaking these rules and was treated better. Without such evidence, Petitioner failed to establish any direct evidence that his suspension and discharge were racially motivated. Likewise, Petitioner failed to establish any circumstantial evidence of racial discrimination, since Petitioner’s statements to Ms. Chambers could arguably be considered a threat directed towards her, and there was no evidence that Ms. Chambers’ reaction was not genuine. Petitioner produced no evidence that Dorsey, Garner, Chambers, or McCaskey had notice or knowledge of his charge of discrimination when he was discharged. Therefore, Petitioner has failed to establish that he was discharged on September 11, 2001, in retaliation for filing the charge of discrimination on June 27, 2001. Petitioner produced no evidence that he suffered any past or future wage loss as a result of his discharge from TMH.
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 Petition for Relief. DONE AND ENTERED this 12th day of March, 2004, 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 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 March, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Ronald Wilson 816 Cochran Drive Tallahassee, Florida 32304 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
The Issue Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.
Findings Of Fact The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached. Petitioner then announced that, "Since they won't settle, I have no more to say." The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 1st day of August, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 1st day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michele B. Brown, pro se 2634 North Point Circle, Apt. B Tallahassee, Florida 32308 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301
Findings Of Fact Union Trucking is a Florida corporation engaged in the business of trucking. Its net worth is less than $2,000,000.00 In DOAH Case NO. 87-4007, the Department sent Petitioner a letter dated August 6, 1987, denying Petitioner's request for certification as a minority business enterprise pursuant to the Department's Rule 14-78.005, Florida Administrative Code. The reason stated in the letter was that Petitioner was not actually under the control of a minority person. On August 25, 1987, Petitioner timely requested a hearing and the case was sent to the Division Of Administrative Hearings on September 11, 1987. By Notice of Hearing dated September 23, 1987, hearing was scheduled for November 16, 1987 and later continued until February 10, 1988. Rule 14-78.002, Florida Administrative Code, was amended on September 21, 1987. The amendment effectively removed DOT's reason-for denial of Petitioner's certification. However, on February 11, 1988, well after the rule change came into effect, DOT formally decided to certify Petitioner. Petitioner was therefore forced to proceed for several months in preparation for an action which Respondent admits it had no basis for after the rule change took effect. Respondent's initial decision occurred on August 6, 1987, when Respondent notified Petitioner of its denial of minority business status. At some point in time, Respondent had filed its proposed rule change. Petitioner failed to demonstrate the time of the proposed change. Depending on the facts surrounding the rule change as to its likelihood of adoption at the time Respondent initiated this action, no findings regarding substantial justification can be made at the time of the agency's initial action on August Most certainly after September 21, 1987, the date the MBE rule was amended, Respondent lacked any substantial justification to continue to litigate this matter. The Final Order of the Department recognized the earlier certification of Petitioner and dismissed the action. However, the Final Order of Respondent did not dispose of the attorney's fees issue which had also been raised during the principal action. The order, therefore, did not dispose of substantially all the issues raised in the principal action. Additionally, there was no settlement of this case since a written settlement agreement was drafted and signed by Petitioner, but refused by Respondent. Respondent's unilateral certification is not enough to force a settlement on Petitioner, especially since Respondent elected to enter a Final Order in this case. Petitioner, therefore, became a prevailing party when Respondent entered its Final Order on April 18, 1988. Section 57.111(4)(b)(2) , Florida Statutes. The application and affidavit which initiated this action were filed on May 23, 1988. The application substantially meets the requirements of Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, in that it fairly put Respondent on notice of Petitioner's claim. The application and affidavit were timely, having been filed within 60 days after the date on which Petitioner became a prevailing small business party. According to the affidavit of Frank M. Gafford, Petitioner incurred legal fees of $3,572.86. These fees and costs are found to be reasonable. The Department does not dispute the reasonableness of the fees in this case.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of October, 2005.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.
