The Issue Whether Petitioner was the subject of discrimination based on her sex or handicap in leasing her apartment from Respondent in violation of Sections 804d and 804d or f of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, Chapter 760.23(2) (4), Florida Statutes (2006).
Findings Of Fact Petitioner resided at Respondent’s Thacker I property for at least a year prior to her move to Respondent’s Pinewoods Place Apartments located at 5929 Pinewoods Place, Milton, Florida 32570. Petitioner moved to Pinewoods, Apartment 25, around March or April of 2003. Neither Petitioner nor Respondent had any material problems with each other during her residency at Thacker I. Her move to Pinewoods resulted from her request to move to a larger apartment. Pinewoods is a large complex managed by Respondent. Some of the units are subsidized by HUD. A list of tenants in the Pinewood complex reflect 58 tenants. Of the 58 tenants, 34 are female. Eleven of the tenants have a disability. In fact, Respondent contracts with providers who serve the disabled to provide apartments to their clients and provides such apartments regularly. Respondent accommodated Petitioner’s request to move to Pinewoods by not requiring a full year’s lease since she had already completed a year at Thacker I and by allowing Petitioner to transfer her deposit from the Thacker I apartment to the Pinewoods apartment. Because of these accommodations, Petitioner was permitted to lease her Pinewoods apartment on a month-to-month lease with an additional deposit of $95. Respondent also accommodated Petitioner in her move by leaving her rent amount the same as it was at Thacker I. Thus, Petitioner paid $400 a month rent instead of the normal $450 a month rent paid by other tenants in comparable apartments. Petitioner did not visit Unit 25 prior to her move to Pinewoods because it was occupied. No other units were available for her to inspect prior to her move. Additionally, HUD inspected the Unit 25 prior to Petitioner’s move and found no violations and that the apartment met HUD standards for being mechanically sound and safe. There was no evidence of any representations made by Respondent to Petitioner regarding Unit 25, and Petitioner did not introduce any evidence of such misrepresentations. Clearly, contrary to Petitioner’s assertions of misrepresentations about her apartment or her assertion that she looked at her Unit or a model, her apartment was not misrepresented to her prior to her move to Pinewoods, and no discrimination on the basis of sex or handicap occurred. Sometime after her move, Petitioner began to complain about her apartment. The evidence was vague regarding most of her complaints, and Petitioner declined to testify about many of her allegations. For instance, there was a vague complaint about leaves being blown into her yard from the sidewalk when the maintenance crew would clear the sidewalk of leaves. However, this method of clearing the sidewalk occurred throughout the complex and was not directed toward Petitioner. Likewise, there was a vague complaint about the trash lady disturbing Petitioner’s morning coffee by performing her assigned duty of picking up trash around the apartment complex. Again, there was no evidence of any activity being directed at Petitioner based on her sex or handicap. At some point, Petitioner complained to Respondent about her dryer vent not working properly. After several complaints and in an effort to resolve Petitioner’s complaint, Respondent’s maintenance person put an interior box-style lint trap, in her Unit. Respondent stated he felt this was the best solution because a member of the maintenance staff used the same type lint trap at his home. Petitioner, for a variety of reasons, was not satisfied with Respondent’s solution and vented the dryer to the outside herself. There is some dispute over whether Petitioner’s repair was safe or done correctly. There is no evidence that indicates Respondent discriminated against Petitioner on the basis of sex or handicap. Petitioner also complained about the sliding glass doors being fogged and wanted them replaced. Respondent explained that the doors were safe and that 55 other residents have fogged glass doors. Respondent refused to replace the glass doors. The next day Petitioner complained to HUD about the fogged glass door being “non-operable.” Because of the complaint, Robert Youngblood from the HUD office in Milton met Respondent’s maintenance staff at Petitioner’s apartment and discovered that the slider had been knocked off its track. Mr. Youngblood reported to Respondent that it was very clear the door had been sabotaged because he had just inspected that same door just days before because of a prior complaint. Respondent fixed Petitioner’s door again. Additionally, the sliding glass door that Petitioner complained about was inspected by both Santa Rosa Glass and Milton Glass. Petitioner also kept an untagged vehicle in the parking lot and threatened to sue if it were towed. All the Pinewoods’ leases contain a provision that untagged vehicles are not permitted on the premises and will be towed. In order to avoid the vehicle being towed, Petitioner switched the tag from her tagged vehicle to her untagged vehicle and back again as notice was given to her. Petitioner again felt this action was discrimination. Again there was no evidence to support Petitioner’s claim. On January 5, 2006, a little more than two years after she moved to Pinewoods, Petitioner complained, when she came to the office to pay her rent, that her garbage disposal did not work. The staff person who took Petitioner’s rent sent a maintenance person that day to look at Petitioner’s garbage disposal. The maintenance person looked at the alleged disposal location and discovered that Petitioner did not have a garbage disposal. There was no plumbing for one. The evidence showed that many units did not have a garbage disposal and that disposals were removed from each unit as they broke down. Petitioner insisted that she should have a garbage disposal since there was a switch on the wall for one. Because of her actions concerning the garbage disposal, Petitioner was given a Notice of Non-Renewal, dated January 6, 2006. Petitioner refused to pay any rent and refused to vacate the apartment based on her belief that Respondent had discriminated against her based on her sex and handicap. She maintained this belief even though she testified that “everybody had problems getting things fixed.” Indeed, her only witness corroborated that men and women, handicapped and non-handicapped have trouble getting things fixed. No reason was given for the non-renewal. Respondent testified that he was tired of Petitioner’s actions and deceitfulness. Petitioner chose to withhold her rent when it was due in February 2006, so that Respondent would bring eviction proceedings against her. Respondent eventually brought eviction proceedings against Petitioner. At the eviction hearing, Petitioner told the judge she wanted to be evicted so it would become public record. Respondent was awarded possession of the premises. After Respondent was given possession, the next morning he received a copy of a letter to the judge requesting that he rescind his decision and requesting another judge. Petitioner has since moved to another apartment. As with the other incidents described above, the evidence did not demonstrate that Respondent discriminated against Petitioner on the basis of her sex or handicap. Therefore, the Petition for Relief should be dismissed.
The Issue The issue is whether The Unlimited Path, Inc. (“The Unlimited Path”) committed an unlawful employment practice against Constance K. Gatewood by denying her a reasonable accommodation and/or by demoting her from her position as Program Director at Jackson Correctional Institution.
Findings Of Fact The Parties The Unlimited Path contracts with the Florida Department of Corrections (“DOC”) to provide residential substance abuse counseling and re-entry services to inmates on prison grounds. The Unlimited Path has been operating since 1994 when it had 30 to 50 employees. Today, The Unlimited Path has 280 employees and operates at 20 to 24 institutions within Florida. DOC is The Unlimited Path’s primary source of revenue. If The Unlimited Path is not satisfying its contractual obligations, then DOC can terminate the contract. Therefore, it is imperative that The Unlimited Path satisfy its contractual obligations. In order to ensure that The Unlimited Path is satisfying those obligations, DOC and the Department of Children and Families (“DCF”) conduct periodic reviews of The Unlimited Path’s substance abuse programs. The contract between DOC and The Unlimited Path is comprehensive. For example, one provision requires that The Unlimited Path comply with the Americans with Disabilities Act (“the ADA”). Another provision empowers DOC to prohibit The Unlimited Path from employing a particular person at a DOC facility. Bertrand Randolph is the President of The Unlimited Path and performs all of the functions typically associated with a chief executive officer of a corporation. Mr. Randolph’s wife, Sheila Randolph, is the Executive Director of The Unlimited Path, and her duties include overseeing the operations and policies of the entire corporation. Ms. Randolph also writes The Unlimited Path’s bids. Ms. Gatewood has worked in prison-based substance abuse treatment programs since 2005. She is a master’s level certified addiction professional or a “CAP”. As a CAP, Ms. Gatewood is qualified to operate a substance abuse program. The Unlimited Path hired Ms. Gatewood on September 20, 2011, to work as a clinical supervisor at the Walton Correctional Institution (“Walton CI”). One piece of documentation associated with Ms. Gatewood’s hiring asked her to disclose whether she suffers from various medical conditions such as epilepsy, diabetes, or heart disease. With regard to a category on that document entitled “other,” Ms. Gatewood noted that she experiences “[a]llergies to certain foods, chemicals, perfumes, other odors plus dyes.” However, she responded negatively to a question asking if she had ever “received a disability rating or had one assigned . . . by an insurance company or state/federal agency.” On an “Emergency Contact Information Sheet,” Ms. Gatewood disclosed that she is allergic to several foods and substances such as aspirin, sulfides, chemicals, perfumes, colognes, seafood, pork, strawberries, nuts, chocolate, red dye, and yellow dye. Ms. Gatewood also noted on the aforementioned form that she has asthma and is sensitive to extreme hot or cold conditions. However, the disclosures described above did not present a complete picture regarding the severity of Ms. Gatewood’s allergies. Specifically, those disclosures did not indicate that Ms. Gatewood’s allergies could be life- threatening. A letter dated October 7, 2003, from Dr. Mark H. Kalenian of Alabama Asthma & Allergy, P.C. presented a comprehensive description of Ms. Gatewood’s allergies and described how they could be life-threatening: The above referenced patient is a 52 year old black female initially seen on 9/13/2001 and last seen on 4/1/2003. Her diagnoses include allergic rhinitis, asthma, dermographic Urticaria, Urticaria/angioedema, and multiple drug allergies. She breaks out in hives and can get facial swelling when ingesting MSG, scupper dines, vanilla ice cream, red #40 and yellow #5 dyes, shellfish, and Advil-related anti-inflammatory drugs. Her main problems that may affect her work are smoke, chemicals and/or perfumes which trigger sinus allergy type symptoms, lip swelling, dizziness, shortness of breath, and anaphylaxis (a potentially life- threatening reaction). These potential exposures to smoke, cologne, perfume, scents or chemicals, extreme hot/cold air, polluted air at work whether in the air or on co-workers could potentially trigger a severe allergic, asthmatic or anaphylactic reaction, which could send her to the emergency room, close off her airway and drop her blood pressure and be potentially life threatening. She should work in a clean air environment, away from co-workers who smoke or wear scented lotions or perfumes, away from polluted air and away from extremes of hot or cold. Avoidance is the best treatment for her, although she needs to continue on all asthma and allergy medications. Please consider implementing a policy of no perfume/cologne or strong scents worn on trainees, and people should smoke outside. As discussed in more detail below, Ms. Gatewood did not share the above-referenced letter with The Unlimited Path until April of 2015.2/ Ms. Gatewood’s Tenure at The Unlimited Path Prior to July 2015 During her tenure with The Unlimited Path, Ms. Gatewood has worked as the Program Director of substance abuse rehabilitation programs at three different DOC facilities: Lowell CI, Jackson CI, and the Northwest Florida Regional Annex. At The Unlimited Path, a program director is responsible for all aspects of a treatment program at a DOC facility. Ms. Gatewood’s allergies became well-known to those who worked around her. Any sort of strong scent presented a problem. For example, Ms. Gatewood’s co-workers could not heat fish in a microwave because of the resulting aroma, and they could not use hand soap. There is no dispute that The Unlimited Path’s management (prior to November of 2014) properly addressed any complaints made by Ms. Gatewood. According to Ms. Randolph, “any time there was a concern, we would address it with the employee or the site by holding a staff [meeting], requesting that people refrain from heavily scented products. I mean, we – we even allowed for there to be some cleaning schedule changes at sites to accommodate her allergies. So we tried very hard to respect the fact that she was sensitive.” The Unlimited Path also allowed Ms. Gatewood to set the standard for soap in the bathrooms. Nevertheless, Ms. Gatewood’s allergies were an issue throughout her tenure at The Unlimited Path. As explained below, Ms. Gatewood cites three instances in which The Unlimited Path allegedly ignored requests from her for a reasonable accommodation within the meaning of the ADA. In other words, Ms. Gatewood alleges that The Unlimited Path began ignoring her requests for a reasonable accommodation in November of 2014. The Unlimited Path began operating a substance abuse rehabilitation program at Jackson CI in January of 2014, with Ms. Gatewood as the Program Director. In approximately November of 2014, counselors under Ms. Gatewood’s supervision were wearing scented products, and the aromas from those scented products were being transferred to documents that Ms. Gatewood had to review in her capacity as Program Director. As a result, Ms. Gatewood experienced allergic reactions and began leaving documents in filing cabinets overnight in order for the scent to dissipate. On November 5, 2014, Ms. Gatewood addressed the following e-mail to Sheila Randolph: This message is to seek advice regarding employees that continue to wear scented products in the workplace which is creating complications because the paperwork is extremely saturated with perfume/cologne/aftershave/lotion scents so strong that I am experiencing allergic reactions signing the paperwork. I have addressed this issue in staff meeting[s], however, it seems not to matter with certain staff. Ms. Russell’s entire caseload charts were so strongly scented today, I asked Ms. Dandridge to place them in the file cabinet because my system could not tolerate the smell nor could I continue signing off on the individual sessions. I became very ill and had to go outside to get fresh air in order to breathe. Also, I know you want me to provide leadership training to Mr. Bell, however, the scented aftershave and hand product he wears makes it extremely difficult for me to interact in close proximity with him, and sign his paperwork. Today, I mentioned to him that I was experiencing an allergic reaction and my eyes were stinging so badly I could not sign his chart. Later I overhead him say “if someone is that sensitive this is not the environment to work in.” At this point, I am unable to perform the duties of my job due to these strong scents that I am affected by smelling and touch. There is a DOC policy that addresses strong scents in the workplace. I don’t want the closed charts to arrive in Tallahassee smelling like a perfume factory, and lastly these scents are very attractive to the inmates. On April 9, 2015, Ms. Gatewood addressed the following e-mail to her immediate supervisor, Amie Bishop: At your earliest convenience I need to speak with you regarding two issues that involve Counselor Karlicia Rogers. Scented products in the workplace that has been address[ed] in the past. She is now wearing heavily scented hand products when completing documentation. Documentation deficiencies regarding three charts that were not countersigned when the client was enrolled into the program, and correcting my documentation in the chart. Later that day, Ms. Gatewood transmitted another e-mail to Ms. Bishop and copied Sheila Randolph. Within the e-mail, Ms. Gatewood expressed an issue regarding Mr. Bell. However, she also referred to the ADA: Yesterday, after Staff Meeting, I considered Mr. Bell’s behavior inappropriate. In front of staff members, he made a comment regarding Ms. Chavers who was not present in the room at the time. He said, “If you are that sensitive you don’t need to be working here.” This was regarding an incident earlier during staff meeting when Ms. Rogers reported information she overheard from Ms. Chavers’ group and (Ms. Rogers) said she wanted clarification. Ms. Chavers thought Ms. Rogers was targeting her and told her so during the meeting. Ms. Rogers explained that she was not targeting her, and after numerous attempts to convince her she was not being targeted, Ms. Chavers excused herself and left the meeting. It was [about] time to go, I went to look for Ms. Chavers, and did not feel the need to keep Mr. Bell overtime to address his behavior. However, this morning, I advised Mr. Bell that I overheard the remark and wanted to address it with him. I mentioned that in the past I overheard him make the same remark about me when he thought I was out of the room (re: scented products in the workplace, and allergic effect it causes me). I further mentioned that I was surprise[d] he would commit the very same act after having been talked to by the Corporate Office. He remembered the incident stating Ms. Clark had advised him not to wear scented products in the workplace, however, she agreed with him regarding his opinion that if I was that sensitive, I did not need to be working here. He further stated that she did not know that I was still upset by the incident, and he began to apologize profusely. I emphasized to him that I was not still upset about that incident. However, my concern is the comment is totally inappropriate in the workplace because of the following reasons: (1) the forum in which he made the comment. The person he was talking about was not present, (2) the possibility of influencing staff members present to feel the same way he does which creates tension in the workplace, (3) in my situation, it is essential to recognize the Americans with Disabilities Act, (4) re: Ms. Chavers it was inappropriate for him to say where she can work, and (5) he continues to make this comment in total disregard of the effect. Hopefully, Mr. Bell will not continue this behavior, however, I do want to keep you in the loop. (emphasis added). Ms. Randolph responded to Ms. Gatewood via e-mail on April 9, 2015, by stating that, This is the first time I’ve heard you make mention of ADA for your condition. We have never gotten any medical documentation from you regarding special accommodations for your sensitivities and yet, we have continued to be supportive of your allergies and the needs you have regarding scents and strong odors. If you are stating that you have a condition covered under the ADA, we need documentation in support of that so that we can explore our responsibilities in that regard further. Via an e-mail dated April 16, 2015, Ms. Gatewood responded to Ms. Randolph’s request by attaching a note dated April 15, 2015, from Dr. Kalenian recommending that Ms. Gatewood have a fragrance free environment due to asthma and chemical sensitivity. Ms. Gatewood also attached Dr. Kalenian’s October 7, 2003, letter that was quoted above in paragraph number 14. In addition, Ms. Gatewood reiterated in her April 16, 2015, e-mail that “the current source of issues for me is when counselors use heavily scented hand products when handling inmates’ charts that I am required to countersign as the Qualified Supervisor.” To the extent that Ms. Gatewood’s November 5, 2014, e-mail amounts to a request for a reasonable accommodation within the meaning of the ADA, her subsequent e-mail on April 9, 2015, indicates that The Unlimited Path addressed her concerns regarding Mr. Bell’s use of scented aftershave. Moreover, The Unlimited Path conducted a staff meeting at some point between November 5, 2014, and December 25, 2014, at Jackson CI and trained the staff members on workplace grooming etiquette and being sensitive to co-workers’ allergies. To the extent that Ms. Gatewood’s April 9, 2015, e-mails amount to requests for a reasonable accommodation within the meaning of the ADA, The Unlimited Path mandated in May of 2015, that female staff members at Jackson CI no longer wear scented lotions. In addition, The Unlimited Path prohibited liquid soap in the bathroom at Jackson CI. To the extent that any of the e-mails discussed above amount to requests for a reasonable accommodation within the meaning of the ADA, the greater weight of the evidence demonstrates that The Unlimited Path took appropriate actions to satisfy those requests. Aside from the issues regarding her allergies, Ms. Gatewood’s tenure at The Unlimited Path has been marked by difficulties with DOC. For example, Ms. Gatewood did not have a good working relationship with the assistant warden of programs at Lowell CI when she was the Program Director there. As a result, Ms. Randolph encountered resistance when she sought permission from DOC to transfer Ms. Gatewood from Lowell CI to Jackson CI. Margaret Agerton, the Assistant Bureau Chief in DOC’s Bureau of Programs, felt as if The Unlimited Path was transferring a problem from one place to another. Nevertheless, Ms. Agerton approved the transfer with the caveat that this would be the last one. Events Leading to Ms. Gatewood’s Demotion On June 2, 2015, Ms. Gatewood requested leave from Thursday, July 16, 2015, through Friday, July 24, 2015, and her request was approved the next day. Because DCF is responsible for licensing and regulating substance abuse and mental health facilities throughout Florida, Michael Van Bebber of DCF arrived on July 23, 2015, at Jackson CI in order to conduct an audit. The Unlimited Path had received advance notice approximately two weeks beforehand. At the time of the audit, Jackson CI was treating 68 inmates. Even though Mr. Van Bebber considers The Unlimited Path to be one of the highest performing substance abuse providers that he reviews, he was disturbed by the state of the treatment program at Jackson CI. Three counselors employed by The Unlimited Path at Jackson CI had resigned within the previous week, and there were not enough counselors for the 68 people receiving treatment. In addition, Mr. Van Bebber considered the treatment facility to be too small for the number of people in the program. In his opinion, the facility was overcrowded, and the overcrowding caused the inmates to be extremely agitated. Mr. Van Bebber felt unsafe and locked himself in an on-site office. With regard to the overall functioning of the program at Jackson CI, Mr. Van Bebber concluded that The Unlimited Path was not performing at the level he would expect from an established provider of residential treatment programs. In fact, The Unlimited Path almost got a warning that could have resulted in the loss of its license at Jackson CI. Because Mr. Van Bebber considered DOC to be equally responsible for the problems at Jackson CI, the warning was not issued.3/ At the time of the audit, Michael Dozier worked for The Unlimited Path, and he substituted as the Program Director at Jackson CI during Ms. Gatewood’s vacation. Mr. Dozier has over 25 years of experience with prison residential treatment communities. He is recognized as an authority on residential treatment programs/communities. Upon arriving at Jackson CI, Mr. Dozier spoke to The Unlimited Path’s staff members and estimated that 50 percent of those to whom he spoke were looking for another job. As Mr. Dozier examined the physical area housing the substance abuse treatment program, he noticed that the facility was unclean and that many of the inmates were disheveled in appearance. This indicated to Mr. Dozier that there was a lack of structure and accountability. On July 23, 2015, Mr. Dozier wrote a memo to the “Executive Leadership” of The Unlimited Path recommending the “immediate removal” of Ms. Gatewood as the Program Director of Jackson CI: First, let me start by saying I have spent the past week evaluating the strengths and weaknesses of our Jackson CI RTC with hopes of identifying the direct cause of high staff turnover, staff resignations without notice, high staff dissatisfaction, and high levels of inmate frustration. During my review, I was very discouraged by what I found. The program space was very dirty with trash cans overflowing, negative graffiti on the walls, chairs disorganized in group space, and counseling offices discombobulated. I also noticed heavy layers of dust and spider webs in the windows [along with] hanging poster paper with inappropriate writing on them. As I focused my attention on the program, I quickly realized that there was no structure in the program. There appeared to be no accountability when it came to community expectations. [R]esidents were walking around with their shirts out, failing to wear their ID, using abusive language and consistently giv[ing] the staff negative feedback when being directed. After speaking to several structure members, I received the following feedback: the last structure meeting was held over three months ago, staff is not assigned to departments, there are no department meetings, no visual display of assigned structure positions and no systems for behavior management/behavior shaping. It was very disappointing to witness the disarray in Morning Meeting and Wrap-up. [T]hose meetings had no structure or desired outcome and residents expressed no trust of the environment. It was clear that staff had been receiving little to no direction from the program director when it came to managing the community and creating program expectations. During my interviews with staff, it was apparent that the director spent most of the time being punitive towards staff focusing on issues such as the way they wore their hair, what they [were] wearing, what lotion they were using and what deodorant they had on. It was also reported that the director would always make negative comments about the corporate office, negative comments about other employees, and a clear dissatisfaction with the contract manager. [S]taff also stated that if they complained about anything the director would defiantly retaliate against them using their request[s] for time off, [the] dress code, clinical files, or [by assigning that staff member to] the difficult clients that week. I was clearly concerned about the staff morale, lack of leadership and the poor client satisfaction I heard over the past four days. As you know, the program director has to be seen as the ultimate role model in the Therapeutic Community. Based on my findings, I am recommending the immediate removal of the Program Director. On July 27, 2015, The Unlimited Path removed Ms. Gatewood from her position as Program Director at Jackson CI and reassigned her to a counselor position at the Northwest Florida Regional Annex. A memorandum signed by May-Li Clark, Ms. Gatewood’s immediate supervisor at the time, explained why Ms. Gatewood was demoted: During the dates of 7/21/15 – 7/23/15, while Mr. Dozier, State Director, was onsite at Jackson CI’s RTC, several issues were noted that clearly reflect lack of leadership within the program. The following issues were noted: No structure within the program; last structure meeting was held over three (3) months ago, no staff assigned to the departments within the community; department meetings with the community were not being held, no visual display of assigned structure position; and no system for behavior management/behavior shaping within the program. Morning Meetings and Wrap-Up Meetings were unorganized with no desired outcome. There was no accountability in regards to community expectations as the inmate/clients were not in Class A uniform, did not have ID’s, were allowed to use profane language and did not follow staff directives. It was apparent that the inmate/clients were experiencing a high level of frustration. Additionally, the inmate/clients expressed no trust within the treatment environment. The memorandum also held Ms. Gatewood responsible for a high amount of turnover among counselors at Jackson CI: Between the dates of 7/17/15 – 7/22/15, two staff members quit without notice and one staff member was escorted off the compound by Jackson CI Administration. In addition to the immediate staff turnover concerns, it has been noted that the program at Jackson CI has experienced a high level of staff turnover since The Unlimited Path took over operations of the program. Issues that were noted which have been the main contributing factors to staff turnover include: 1) program space (staff work space) was unsanitary with trashcans overflowing, layers of dust and spider webs in the windows, disorganization of program and office space, negative graffiti on the walls and hanging poster paper with inappropriate writing on them; (2) staff receiving little to no direction from the program director regarding program structure, creating and managing program expectations and minimal training regarding clinical file documentation; and 3) fear of retaliation when speaking of concerns or seeking assistance. Ms. Gatewood signed the memorandum but noted that she did not agree with its contents and would challenge the decision.4/ Since the end of July 2015, Ms. Gatewood has been working as a Counselor at the Northwest Florida Regional Annex. As a Counselor, Ms. Gatewood does not have to handle the paperwork of other counselors. The greater weight of the evidence does not demonstrate that Ms. Gatewood’s demotion was retaliation for her repeated complaints about co-workers being insensitive about her allergies. In other words, The Unlimited Path had valid reasons for demoting Ms. Gatewood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Constance K. Gatewood’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 22nd day of June, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 22nd day of June, 2017.
The Issue Whether this case should be dismissed based on Petitioners’ failure to appear at the scheduled telephonic final hearing.
Findings Of Fact Upon receipt of the Petitions for Relief at the Division, Initial Orders were issued on October 24, 2012, requiring Petitioners to coordinate a joint response to provide certain information within seven days or to file a unilateral response if a joint response was not possible. Neither Petitioners nor Respondents responded to the Initial Order in either case. Case I was initially set for final hearing on December 17, 2012, by video teleconference at sites in Pensacola and Tallahassee, Florida. Case II was initially set for final hearing on December 27, 2012, in Tallahassee, Florida. Prior to consolidation of the cases, Respondent Hamilton requested a continuance of the final hearing scheduled in Case I. Hamilton’s correspondence, which was taken as a motion, represented that Hamilton had attempted to contact Petitioners to determine whether they would agree to a continuance, that Hamilton had left a voice message with Petitioners, and that Petitioners had not responded. At the direction of the undersigned, the Division also attempted to contact Petitioners to determine their position on the requested continuance. Division personnel also left voice messages with Petitioners. On December 10, 2012, Michael Edwards contacted Division staff, identified himself as Petitioners’ son, stated he had received the messages, and represented that Petitioners had no objection to a continuance. Further, Mr. Edwards explained that a continuation would be needed because Myrna Edwards was recovering from major surgery and McArthur Edwards was suffering with complications from Post Traumatic Stress Disorder. Having received confirmation that Petitioners did not oppose continuance, and would likely have been unable to attend the final hearing as scheduled, the undersigned entered an Order Canceling Hearing and Placing Case in Abeyance on December 10, 2012. The Order required Petitioners to confer with Respondents’ counsel and advise as to the status of the matter no later than January 30, 2013. Further, Petitioners were required to include in the status report mutually-agreeable dates for scheduling the final hearing if Petitioners intended to pursue the matter. The cases were consolidated on December 17, 2012, thus the Order was binding in both cases. Neither the original Notice of Hearing nor the Order Canceling Hearing and Placing Case in Abeyance mailed to Petitioners was returned as “undeliverable.” On January 30, 2013, Respondent Bristol filed a status report representing that Bristol had not been contacted by the Petitioners to coordinate the status report as directed in the Order. Further, Bristol represented that it had attempted to reach Petitioners by phone the previous day and had left a voice message, but had received no return call from Petitioners. Despite the fact that Petitioners did not comply with the Order, the undersigned requested Division personnel to contact Petitioners to determine whether Petitioners intended to pursue the matter. Division staff called Petitioners’ residence and left messages for Petitioners to contact the Division regarding this case. The Division received no return call. In an abundance of caution, the undersigned scheduled the case for telephonic final hearing on February 28, 2013. Telephonic hearing was chosen to afford Petitioners, now residing out of state, every opportunity to be heard on their complaints. The undersigned also issued an Order of Pre-hearing Instructions (Order) requiring the parties to confer no later than seven days prior to the final hearing to determine whether the matter could be resolved amicably and to exchange witness lists and copies of proposed exhibits. Neither the Notice of Telephonic Hearing nor the Order mailed to Petitioners was returned “undeliverable.” On February 20, 2013, Respondent Hamic filed its witness list and served proposed exhibits on all other parties. On February 21, 2013, the same Respondents provided copies of proposed exhibits to the undersigned. On February 21, 2013, Respondent Bristol filed its witness and exhibit lists and provided copies of proposed exhibits to the undersigned. Petitioners filed neither a witness list nor an exhibit list and did not provide the undersigned with any proposed exhibits. On February 21, 2013, Respondent Hamic filed a Notice of Attempt to Comply in response to the undersigned’s Order. The Notice documents Respondents’ unsuccessful attempts to reach Petitioners to confer and exchange witness lists and proposed exhibits. On February 22, 2013, Respondent Hamic filed a Motion to Dismiss, or, Alternatively, to Close the Case. The Motion represented that Petitioners had not contacted Respondents as required by the Order to confer and exchange witness lists and exhibits. The Motion was denied. The final hearing commenced as scheduled, via telephone, on February 28, 2013. Respondents Hamic and Bristol entered appearances. Petitioners did not appear. The undersigned allowed 20 minutes from the noticed hearing time, 9:30 a.m., for Petitioners to make an appearance. None was made. Respondent Hamic offered Exhibits 1 through 41 into evidence, which were received without objection. Respondent Bristol offered Exhibits B-1 through B-8 into evidence, which were received without objection. No witnesses were called. The proceedings closed at approximately 10:00 a.m. No transcript of the proceedings was made.
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 Petitioners McArthur and Myrna Edwards’ Petition for Relief. DONE AND ENTERED this 6th day of March, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2013.
The Issue Whether Respondent, Whitehall Enterprises, Inc., d/b/a Villas Des Chenes, discriminated against Matthew Les Foris, deceased, on the basis of his race in violation of 42 U.S.C. Section 3604(a) and/or (b), and Sections 70-77 and 70-176, Pinellas County Code, by not renewing Les Foris’ lease when it expired.
Findings Of Fact Matthew Les Foris, the complainant in this case, was an African-American male and a member of a protected class. Following initiation of the proceedings before the Commission, he passed away on August 23, 2003. Les Foris' granddaughter, Crisella Winder, was appointed as personal representative of his estate, and she was substituted as Petitioner in this matter. Respondent, Whitehall Enterprises, Inc. ("Whitehall or Respondent"), rents dwelling units to the public at various apartment communities in the Clearwater, Florida, area. Among others, Whitehall operates a 38-unit apartment community commonly known by the name Villas Des Chenes Apartments ("Villas Des Chenes"). These units are rented to adults over the age of 55 on a yearly lease basis. Maxine Chartier is general manager and vice-president of Whitehall. She has held this position since 1998, and prior to this position, worked as an assistant to Whitehall’s general manager. James Yopp is the property manager at Villas Des Chenes, as well as at four of the other Whitehall properties in the Clearwater area. He has held this position for about six years, and prior to this position, worked as a maintenance man for the Whitehall properties. He has attended fair housing training. Whitehall does not have a written policy regarding renewals or non-renewal of leases. It does not keep records of incidents at its properties. However, there were regular practices regarding renewals. At Villas Des Chenes, there are fair housing posters in the office and the laundry room describing fair housing practices. They were present when Les Foris lived there and are presently still on display. It was Yopp’s practice to visit Villas Des Chenes on an almost daily basis. He would talk with Chartier nearly every day, reporting events and problems, as needed. The two would discuss what problems there were and, where possible, reach resolutions. Chartier had a process she used in determining when to non-renew a tenancy. She would consider whether there had been problems in the previous year and consider what would work best for the property. Factors considered by Chartier included whether the tenant was unhappy and "bad-mouthing" the company, mistreating staff, getting along with others, doing damage, paying rent late, or an accumulation of those factors. She would rely on what was reported to her by the property manager and her own observations, if any. The ultimate decision to non- renew a tenancy rested with her. On November 13, 2000, Les Foris applied for an apartment at Villas Des Chenes. Yopp accepted the application, along with Les Foris’ advance payment of $200.00. The application was approved, and Les Foris and Respondent entered into a lease for a one-year term commencing December 1, 2000, and ending November 30, 2001. The leasing procedure for Les Foris was the same as that used for other tenants. Approximately 30 days prior to the end of the initial lease’s term, Yopp offered to renew the lease for another one- year term. Yopp and Les Foris signed a renewal on November 30, 2001. Under the terms of the renewal, the lease term was to end on November 30, 2002. Neither the lease nor the renewal provides for an automatic renewal of its terms. Beginning sometime in May 2002, management noticed problems involving Les Foris’ tenancy. In May 2002, Yopp received a call from a tenant who reported that Les Foris was upset with another resident. Yopp subsequently talked with Les Foris, and he complained about an upstairs neighbor on two occasions. Yopp could see no evidence of the causes for the complaints by Les Foris. A couple of days later, Les Foris complained again about the same neighbor. This time, Les Foris threatened to harm the neighbor. Yopp told Les Foris that such conduct by Les Foris would be inappropriate. Although Yopp had handled numerous tenant squabbles during his career as property manager, in none of them had a tenant threatened to harm someone. However, after this incident, Les Foris and the neighbor had no further problems. Subsequently, the neighbor moved out of the complex for unrelated reasons. In addition, Les Foris repeatedly parked his car in spaces not reserved for him. On an almost daily basis when he was not working, Les Foris would park his car in spaces reserved for other tenants. The tenants would call Yopp, who would then ask Les Foris to move the car. Les Foris would then return his car to his proper parking space. The next day, the scenario would repeat itself. Les Foris would explain that he was moving his car so that it could be in the shade. Yopp told Les Foris that such conduct was inappropriate. Yopp testified that he received complaints from two residents about Les Foris. The complaints were from Ruth Poetter and Carmella Eichen. Each of the women complained that Les Foris made them feel uncomfortable, without offering greater explanation. It was a customary practice for many of the residents at Villas Des Chenes to sit outside their units at tables and chairs. Poetter followed this custom. About the time of her complaint to Yopp, Yopp observed that Poetter ceased sitting outside. When Yopp visited the property, Les Foris would complain about Whitehall. Ralph Agliano, a former tenant of Villas Des Chenes, testified that Les Foris would routinely complain about things, and Agliano would attempt to explain them. Yopp reported all problems, including those involving Les Foris, to Chartier. On or about September 15, 2002, Yopp delivered a notice to all tenants, including Les Foris, regarding proposed rent increases that management intended to implement beginning in December 2002. The delivery of that notice was not triggered by the end date of any tenant’s lease and was not an offer to renew. As of September 15, 2002, when the notice about proposed rent increases was delivered to all tenants, no decision had yet been made to renew or not renew Les Foris’ lease. Yopp and Chartier subsequently discussed whether to renew Les Foris’ lease. Chartier decided that, based on the complaints relayed to her about Les Foris in the preceding months, Les Foris' lease would not be renewed when it expired at the end of November 2002. Chartier felt that it was not in the best interest of Whitehall to continue with a tenant who was unhappy with the company, made a threat to harm another tenant, and who made other residents uncomfortable. She did not want the residents of Villas Des Chenes to be afraid. It was an accumulation of things that formed her decision. This process by Chartier, as applied to Les Foris, was the same as that which she used for others. Yopp prepared and issued a notice of non-renewal to the tenant. The notice did not set forth a reason for the non- renewal. Yopp admitted that other tenants also parked in parking spaces other than those assigned to the tenant. In addition, it is anticipated that other tenants have disputes with their neighbors. In the six years Yopp had been property manager at the complex, no residents were non-renewed specifically for either reason. When Les Foris received the notice, he became upset. He asked Yopp to explain the reason for the decision. Yopp declined to give an explanation. In the year that Les Foris received his notice of non-renewal, Yopp delivered notices of non-renewal to three other tenants. In none of them did Yopp give a reason for the non-renewal. The notice of non-renewal given to Les Foris did not differ in form or substance from that used for other tenants. Les Foris spoke with Chartier by phone about the non-renewal. Les Foris asked Chartier the reason for the non-renewal. Chartier also declined to give one stating that she was not required to give a reason. At the hearing, Chartier explained that it was her practice not to explain the reasons for non-renewals. Because the lease did not require a reason, she did not offer one. Discussions about the reasons for non- renewal often lead to arguments and to Chartier, they serve no purpose. During the phone conversation, Les Foris requested reconsideration and, if that failed, then additional time to find a new place to live. He explained to Chartier that he lacked funds and had no one to help him move. Chartier offered to allow some extra time to remain on the premises and to make an early refund of the security deposit. Chartier returned the security deposit to Les Foris by way of a letter dated November 15, 2002. Les Foris filed his complaint of housing discrimination on November 7, 2002. Chartier learned of it after sending him the November 15, 2002, letter. Les Foris moved out of Villas Des Chenes in November 2002. Winder had lost touch with her grandfather for sometime and had "found" him only about two years prior to his death. At the time she formed a bond with Les Foris, he was a tenant at Villas Des Chenes. Les Foris was happy there because he resided close to Winder and her children and was within walking distance of the grocery store where he worked part-time. Winder testified that when Les Foris was informed of the non-renewal, he became upset. He expressed to her his distress at being made to move. However, she helped him find a new apartment and helped him move. Winder found movers and paid them on Les Foris' behalf. She also arranged for storing his property in a commercial facility. The move cost less than $400.00. The rent was higher at the new complex, where Les Foris lived for just a few months before becoming ill. Winder saw her grandfather regularly after he received the non-renewal notice. He frequently called her after having anxiety problems at his new apartment. Les Foris was disoriented about the location of items in his new apartment. He was definitely inconvenienced by the move. He was also humiliated and ashamed in front of his neighbors for being forced to move out. His daily routine was disrupted, and he was unable to make friends at the new complex.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Administrative Law Judge will enter a final order dismissing Petitioner, Crisella Winder, as the Personal Representative of the Estate of Matthew Les Foris’ Petition for Relief for failure to prove a case of housing discrimination against Respondent, Whitehall Enterprises, Inc., d/b/a Villas Des Chenes, after the period for submission of exceptions has expired. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2004. COPIES FURNISHED: Leon W. Russell, Human Rights/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue Fifth Floor Clearwater, Florida 33756 W. Oliver Melvin, Compliance Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue Fifth Floor Clearwater, Florida 33756 Matthew P. Farmer, Esquire Farmer & Fitzgerald, P.A. 708 East Jackson Street Tampa, Florida 33602 Lynn Hanshaw, Esquire Gulfcoast Legal Services 314 South Missouri Avenue, Suite 109 Clearwater, Florida 32756 Cathy L. Lucrezi, Esquire Law Offices of Heist, Weisse & Lucrezi, P.A. 1661 Estero Boulevard, Suite 20 Post Office Box 2514 Fort Myers Beach, Florida 33932
The Issue The issue in this supplemental proceeding is whether Respondents Soo Y. and Myung S. Chung, separately or together, retaliated against Petitioners as a result of Petitioners' exercise, or attempted exercise, of a protected housing right.
Findings Of Fact From August 2012 through January 2015, Petitioners Verdell Carter ("V. Carter") and her daughter Courtney Carter ("C. Carter"), who are African-Americans, rented and occupied a residential unit in Cité Condominiums ("Cité") in Miami, Florida, which served as their principal residence. At all relevant times, the owners of this unit were Soo Y. Chung and Myung S. Chung (collectively, the "Lessor"). Respondent Cité Condominium Association, Inc. (the "Association"), oversees the operation of the property. The Association's Board of Directors (the "Board") is its governing body. At all relevant times, a third-party property management company, FirstService Residential Florida, Inc. ("Management"), performed on-site management services at Cité. V. Carter and the Lessor entered into a lease agreement concerning Unit No. 3206 at Cité in July 2012. Pursuant to the applicable declaration of condominium, this lease (like all such leases of units at Cité) was subject to Board approval as a condition precedent of V. Carter's taking possession of the leased premises. To obtain Board approval, V. Carter and the Lessor were required (as were all persons entering into such leases) to execute an Addendum to Lease, which made the Association a third-party beneficiary of the lease and, among other things, bound the lessee to all of the rules and conditions applicable to unit owners. There is some dispute concerning the term of the subject lease. It commenced on or around August 15, 2012——that much is certain. The Carters assert that the lease was for three years, until August 15, 2015. The Association contends that the lease had a one-year term with options to renew annually for up to two additional years. The Association maintains——and acted on the belief——that it had the right to veto any attempt to renew the lease. This particular dispute is immaterial, however, for whether or not the Association could veto a renewal attempt, it clearly had the right to dispossess the Carters if they disobeyed the Association's rules. The Addendum to Lease provides, in pertinent part, as follows: Lessee agrees to abide by this Addendum, the [provisions of the Association's Declaration, By-Laws, Articles of Incorporation, Rules and Regulations, as same may be amended from time to time,] and all applicable laws, ordinances and regulations. If Lessee fails to comply with [any of these], Lessor shall promptly commence action to evict Lessee. If Lessor fails to promptly commence action to evict Lessee, Lessor hereby authorizes the Association . . . to commence eviction proceedings [on Lessor's behalf.] Unfortunately for everyone concerned, the Carters repeatedly violated the rules. Early in the lease term, V. Carter brought her dog into the unit without first registering the pet with the Association as required. After Management became aware in November 2012 that V. Carter had an unregistered pet on the premises, it provided her the form for curing the violation, but she failed timely to return the paperwork. As a result, on November 26, 2012, the Association assessed a charge of $56 against the Lessor's account.3/ Meanwhile, C. Carter moved into Unit No. 3206 without informing the Association, which gave rise to a series of violations. Although C. Carter initially occupied the premises as a guest, before long she decided to remain as a resident. In time, Management noticed that C. Carter's stay had exceeded 30 days, making her an "unregistered visitor." Additionally, C. Carter parked her car——which was an "unregistered vehicle"—— in spaces reserved for Cité's owners and tenants (both residential and commercial). This resulted in several $56 charges being posted to the Lessor's account in November 2012 for unauthorized parking and for parking an unregistered vehicle in an unauthorized area. In January 2013, the Lessor was again assessed a $56 charge because C. Carter had parked her unregistered vehicle in an unauthorized area, along with a separate $56 charge for the presence an unregistered visitor (namely C. Carter). By letter dated January 23, 2013, the Association notified the Lessor that it intended to take steps to terminate the lease between the Lessor and V. Carter due to the Carters' failure to comply with the Association's rules. Before that could happen, however, V. Carter registered her dog, C. Carter became a registered tenant, and C. Carter rented an additional parking space from the Association for her car. The Carters assured the Lessor and the Association that, in the future, they would comply with all of the Association's rules. In due course, the Board agreed to acquiesce to the continuation of the lease, and——with the exception of a few relatively minor issues too trivial to recount——relations between the Carters, Management, the Association, and the Lessor calmed down to a reasonably peaceful state of affairs. This détente ended on Sunday, June 22, 2014. On or around that date, the commercial tenant directly below Unit No. 3206 experienced damage from water intrusion at the ceiling. Minor dampness was observed on the carpet outside the front of Unit No. 3206. Management contacted V. Carter and notified her that maintenance personnel needed to enter her unit immediately to locate the source of the leak, which there were grounds to believe was inside. Management's authority to enter the unit was clear and is not disputed. The Addendum to Lease provides: The Association and/or its authorized agent(s) shall have the irrevocable right to have access to the Unit as may be necessary for inspection, maintenance, repair or replacement of any Common Elements accessible therefrom, or for making emergency repairs necessary to prevent damages to the Common Elements or other units. Claiming that she was in the process of showering and in a state of partial undress, V. Carter refused to admit the maintenance men that Sunday morning. They left, so that V. Carter could finish getting ready. When the repair crew returned a short while later, however, V. Carter turned them away again, explaining that she was leaving for church. First thing the next day, June 23, Management notified the Lessor that V. Carter had refused to let maintenance personnel into the unit so that they could identify and repair the source of a suspected leak. The Lessor authorized Management to access the unit that morning. V. Carter, however, again refused to allow the maintenance men to enter the unit. This obstinacy violated the Association's rules and resulted in the imposition of charges totaling $126, for which the Association billed the Lessor. Eventually, Management gained access to the unit and fixed the problem in the bathroom which had caused the leak. Because V. Carter had refused access to the unit in violation of the Association's rules, the Association notified the Lessor and the Carters that it would not approve an extension of the lease beyond August 15, 2014. On June 25, 2014, V. Carter requested a meeting with the Board to discuss this decision. Her request was denied. By letter dated July 11, 2014, the Lessor notified the Carters that the lease would terminate on August 15, 2014. The Lessor also demanded payment of past due rent for April ($500) and July ($1,500) plus reimbursement of a returned-check charge of $30 that the Lessors had incurred when the Carters' June rent check bounced. A few weeks later, a heavy rainstorm, which took place late at night on Sunday, August 3, 2014, and during the early morning hours of August 4, caused Unit No. 3206 to flood. Other units flooded as well, causing an emergency situation for Management, which by all accounts responded promptly. The Carters claim to have been out of town at the time of this incident. Regardless, V. Carter acknowledges that Management contacted her by phone and requested permission——which she gave——to enter her unit to take remedial measures. Maintenance personnel entered the unit and extracted the water. In doing so, they discovered that the patio drain had been plugged with a flower pot, which likely had allowed water to pool on the patio and ultimately flood into the unit through the patio door. The Carters allege that the maintenance men discriminated against them on the basis or race or color by entering other units before taking care of Unit No. 3206. There is no persuasive evidence, however, of any sort of delay (discriminatory or otherwise) on the part of the maintenance crew, which as mentioned responded quickly and reasonably to an overnight situation affecting multiple units in addition to the Carters'. The Carters did not vacate Unit No. 3206 on or before August 15, 2014. As it happened, however, there was another rainstorm on that day which caused further flooding in the unit. C. Carter was present at the time, and she contacted Management, which addressed the immediate problem. After that, a months-long struggle ensued, during which Management and the Lessor attempted to arrange for repairs to be made to fix the damages that had resulted from the August floods and the earlier, June leak, and the Carters, while demanding that the repairs be made, refused access to repairmen and generally failed reasonably to cooperate. Around this time, as well, the Carters——who in the Lessor's eyes had become holdover tenants as of August 15——stopped paying rent to the Lessor. On August 19, 2014, the Lessor gave the Carters a statutory three-day notice to pay rent or vacate the premises on or before August 22, 2014. The Carters did not leave. On September 12, 2014, the Lessor gave the Carters another statutory three-day notice. The Carters, however, did not quit the premises. On or around September 19, 2014, the Lessor commenced an action for eviction in the Miami-Dade County Court. Several months later, the county court entered a judgment of eviction against the Carters, and, on January 20, 2015, a writ of possession was issued. The Carters moved out of Unit No. 3206 on January 23, 2015, but not without incident. Association rules prohibit the use of the stairways when moving furniture and other household goods. Residents who are moving in or out of Cité must reserve (and pay a fee for the use of) the freight elevator and loading dock. The Carters had not arranged to use the freight elevator, preferring instead to use the stairs. Management saw this violation in progress and sought to stop the Carters from moving their belongings down the stairs. The Carters would not be deterred. Management called the police, an officer arrived, and the unauthorized transport of goods through the stairwell was arrested. Meantime, V. Carter's dog urinated on the hallway carpet and on the wall. As a result of this memorable departure, the Association imposed charges against the Lessor's account totaling $950. V. Carter claims to suffer from post-traumatic stress disorder, which she characterizes as a "non-visible" disability. C. Carter claims to suffer from attention deficit hyperactivity disorder, which she characterizes as a "non- visible" disability. Determinations of Ultimate Fact There is no persuasive evidence that any of the Association's decisions concerning, or actions affecting, the Carters, or either of them, directly or indirectly, were motivated in any way by discriminatory animus directed toward V. Carter or C. Carter. There is no persuasive evidence that the Association refused, upon request, to make a reasonable accommodation for either V. Carter or C. Carter. There is likewise no persuasive evidence that any of the Lessor's actions, including bringing suit to evict the Carters, were motivated by discriminatory animus or were taken to retaliate against the Carters for their exercise of a protected housing right. In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination or retaliation could be made. Ultimately, therefore, it is determined that the Association did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding the Association not liable for housing discrimination and awarding the Carters no relief. DONE AND ENTERED this 27th day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2015.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
