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 Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.
The Issue Did Respondent, CTI Resource Management Services, discriminate against Petitioner on account of her race, in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made: Ms. Ferguson worked for CTI as an enterprise application support (EAS) customer service representative (CSR) at the company’s corporate headquarters in Jacksonville, Florida. She was hired on June 18, 2012. CTI is a Service-Disabled Veteran-Owned Small Business. The company operates as a government contractor and provides support for information technology, logistics, staff augmentation, and administrative support primarily for government customers. CTI has been in business since March 2003. At all times relevant to this case, CTI has maintained a Discrimination, Harassment, and Retaliation Policy, prohibiting all forms of unlawful discrimination, harassment, and retaliation. The policy states in part as follows: Conduct that interferes with CTI, or an individual’s work performance, or creates an intimidating, hostile or offensive working environment is prohibited. CTI will not tolerate any attempts of retaliation against an employee who raises a sincere and valid concern that this policy has been violated. CTI takes all allegations of discrimination, harassment and retaliation very seriously and is firmly committed to ensuring a workplace free of discriminatory activities. Anyone engaging in discrimination, harassment, or retaliation is subject to disciplinary action up to and including termination. (Respondent’s Ex. 2) Ms. Ferguson was familiar with this policy and received annual training on it. In fact, in 2015, she made a perfect score of 100 on her discrimination policy training. Ms. Ferguson reported to her team leader, Sarah McKibben. Ms. McKibben, in turn, reported to the administrative director and program manager, Wendy Marsh. Ms. Marsh reported to CTI’s executive vice president and chief operating officer, Chris Getz. Mr. Getz reported directly to CTI’s chief executive officer, Chris Imbach. CTI also employed a director of Human Resources, Robin Norton. Ms. Norton has been employed in this position for approximately six years and has over 20 years of experience in the field of human resources. Iris Maldonado Borges was employed as a coworker on Ms. Ferguson’s Team, and, in fact, occupied the cubicle immediately adjacent to Ms. Ferguson. Ms. Borges is Hispanic. On Thursday, September 9, 2015, Ms. Marsh advised Ms. Norton that Ms. Borges was resigning from her employment. This surprised Ms. Norton, since Ms. Borges recently had sought a promotion within the company, and, in the process, had advised Ms. Norton how much she loved working for CTI. Accordingly, Ms. Norton asked Ms. Borges to come to her office to talk about her resignation. When Ms. Borges reported to Ms. Norton’s office, Ms. Borges initially did not want to talk about the reasons for her resignation, simply saying that she was resigning “for personal reasons.” When pressed further, Ms. Borges said that she did not want to “get anyone in trouble” and started crying. She also stated that she was afraid of retaliation. When she was assured that CTI had a policy against retaliation, she finally talked about four separate incidents that she had experienced in the workplace. The first incident related by Ms. Borges involved mean and hurtful comments and gossip about Team Leader McKibben and another employee, Veronica Smoot, allegedly being in a lesbian relationship. According to Ms. Borges, Ms. Ferguson and another coworker, Phylisia Knowles, were the ones making the “loudest comments.” This was upsetting to Ms. Borges since both Ms. McKibben and Ms. Smoot were friends. The second incident also involved Ms. Knowles. Ms. Borges said that Ms. Knowles was “very mean” to her, would not speak to her, and during a team meeting, she had “shot her a bird.” The third incident occurred during the employee “crazy hat day.” According to Ms. Borges, she, Ms. Knowles (African- American), and Ms. Ferguson were posing for a picture, when another employee, who was Caucasian, attempted to join the picture. Ms. Ferguson then allegedly told the employee, “no, this is a minority picture,” and the employee was not included in the picture. The fourth incident involved alleged gossiping by Ms. Ferguson with another coworker about Ms. Borges allegedly being in a relationship with a male coworker. Ms. Borges overheard the conversation, which upset her because she was married, and she felt like the conversation was very disrespectful to her marriage. After relating the above incidents, Ms. Borges stated that “these things had been building up and that she couldn’t take it anymore” and she wanted to resign. Ms. Norton then asked Ms. Borges to take some time off with pay until the matter could be investigated, which she agreed to do. Ms. Norton conferred with Ms. Marsh and Mr. Getz, and it was determined that Ms. Ferguson and Ms. Knowles would both be interviewed the following Monday, September 14, 2015 (the first day that both were scheduled to be at work). It was also determined that Ms. Borges’ workstation would be moved to a new location that was not immediately adjacent to that of Ms. Ferguson. Both Ms. Ferguson and Ms. Knowles were interviewed the following Monday, September 14, 2015, by Ms. Norton, Mr. Getz, and Ms. Marsh. Ms. Norton initially conducted both interviews, asking a sequence of questions concerning the incidents raised by Ms. Borges. With respect to Ms. Ferguson, she recalled rumors circulating about Ms. McKibben and Ms. Smoot being in a lesbian relationship, but denied participating in them. She could not recall the “this is a minority picture” comment during “crazy hat day,” but stated that it sounded like something she could have said in a joking manner. She denied participating in a conversation about Ms. Borges allegedly being in a relationship with a coworker. Mr. Getz concluded the interviews with both Ms. Ferguson and Ms. Knowles by stating that whether or not they had participated in the incidents and rumors involving coworkers, such conduct did not resonate with CTI’s values and was not to be tolerated. He reiterated that if such conduct happened again, the offending employee would be immediately terminated and he would personally escort him or her out the door. At the conclusion of the interviews, Mr. Getz, Ms. Norton, and Ms. Marsh conferred and it was decided that, aside from the stern warning from Mr. Getz, no further action was to be taken against either Ms. Ferguson or Ms. Knowles. Two days later, on Wednesday, September 16, 2015, Ms. Marsh, Ms. McKibben, and Ms. Borges, who was crying, all came into Ms. Norton’s office. Ms. Borges described an incident that had occurred that morning in the ladies’ room involving Ms. Ferguson. She stated that as she was exiting her stall, Ms. Ferguson was standing there blocking her exit and “fronting” her. When asked what she meant by “fronting” her, Ms. Borges stated that Ms. Ferguson had her chest bowed out, and had a “very mean and intimidating look on [her] face” like she was “going to fight.” While describing the incident, Ms. Borges was very, very upset and crying. She stated that she “had had it . . . that she couldn’t take it anymore and she wanted to resign.” Ms. Norton again asked her to please go home until they had an opportunity to address the situation. Ms. Norton, Ms. Marsh, and Ms. McKibben then contacted Mr. Getz and related to him what Ms. Borges had reported. In discussing the situation, it was determined that they had no reason not to believe Ms. Borges. She had been an excellent employee and was very non-confrontational in her demeanor. There also were no other witnesses to the incident besides Ms. Borges and Ms. Ferguson. Mr. Getz and Ms. Norton also conferred with CTI’s chief executive officer, Chris Imbach. It was decided that the type of intimidating behavior reported by Ms. Borges was not consistent with the company’s values, particularly since it had occurred a mere two days after Mr. Getz had made it “crystal clear” that such conduct would not be tolerated. Accordingly, the decision was made to terminate Ms. Ferguson’s employment. Mr. Getz, Ms. Norton, Ms. Marsh, and Gary Rogers, director of Security, met with Ms. Ferguson that same afternoon. Mr. Getz conducted the meeting, which was “relatively short and to the point.” He advised Ms. Ferguson that she was being terminated for her intimidating behavior in the women’s bathroom, which was found to have created a hostile working environment. Ms. Ferguson was argumentative and tried to interrupt Mr. Getz throughout the meeting. Ms. Ferguson stated that she could not believe that she was being fired for merely “glaring” at a coworker. This statement confirmed to Mr. Getz and Ms. Norton that Ms. Ferguson knew what she had done in the ladies’ room, as Mr. Getz had simply told her that she was being terminated for her “intimidating behavior” in the ladies’ room--no details of the incident were disclosed to her. Ms. Ferguson was provided a written letter of termination at the meeting, confirming the reason for her termination. Mr. Getz made the final decision on termination. There was no persuasive evidence presented at hearing that race played any part in Mr. Getz’s decision. Mr. Getz was a pastor in a local church for 15 years prior to being an executive with CTI. Mr. Getz also has a very racially diverse family. He and his wife adopted four children, one of which is Asian, one is half Caucasian, half Hispanic, and two are African-American. The evidence established that CTI has a racially diverse workforce at its corporate headquarters. In 2015, 21 of its 70 employees, or 30 percent, were African American; five, or seven percent, were Hispanic; and three, or four percent, were Asian. Petitioner presented evidence that an African-American coworker, Jeff Lazenby, had made a complaint of a hostile work environment against his Caucasian supervisor, Adam Highfill, but that Mr. Highfill was not terminated by CTI. The complaint against Mr. Highfill occurred in June 2011, over four years prior to the incident leading to Ms. Ferguson’s termination. Mr. Lazenby’s complaint was investigated by Ms. Norton; Mr. Getz; Mike Vonbalson, senior program manager and Mr. Highfill’s supervisor; and Bob Bearden, also a program manager. It was determined that Mr. Highfill had not created a hostile working environment; rather the two individuals became engaged in a disagreement on the work floor and both were found to have acted inappropriately. Mr. Lazenby and Mr. Highfill were both counseled for their behavior. Further, Mr. Highfill was found to have engaged in poor management practices. He was placed on a 30-day development plan to attempt to improve his management skills. When his management skills did not improve to an acceptable level, Mr. Highfill was demoted to a nonsupervisory position on August 3, 2011, where he remains employed. Ms. Knowles, who is African-American, was not terminated by CTI, because there were no further complaints or incidents involving alleged behavior by her following the company’s interview with her on September 14, 2015. The credible evidence of record established that Ms. Ferguson was terminated for creating a hostile work environment after being specifically advised on September 14, 2015, that any such behavior in the future would result in her termination by the company. There is no credible evidence of record that Ms. Ferguson’s termination was racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 24th day of March, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 24th day of March, 2017.
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
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.
