The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Petitioner was employed at Brevard Correctional Institution and was considered by the Department to be qualified for the position for which he was employed. Petitioner is a male, African-American. On October 24 1994, Petitioner received a Written Reprimand for the abuse of the Department's sick leave policy, which had occurred on October 21, 1994, in that Petitioner, while on authorized sick leave on October 21, 1994, attended the Dorothy Lewis trial, without authorization from the Department. Petitioner presented no evidence to show that the Written Reprimand issued on October 24, 1994, was issued because of Petitioner's race or gender; rather it was issued based on a reasonable belief that Petitioner had abused the Department's sick leave policy by attending the Dorothy Lewis trial while out on official sick leave. Petitioner presented no evidence to support the remaining allegations contained in the Petition for Relief filed by Petitioner in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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 18th day of January, 2002. COPIES FURNISHED: Hugh F. Brockington, II 19715 Eagles View Circle Umatilla, Florida 32784 Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue presented is whether Respondent Wildwood Golf Operations, LLC, committed an unfair employment practice by discriminating against Petitioner when it terminated Petitioner's employment.
Findings Of Fact Respondent Wildwood Golf Operations, LLC, is a multi- faceted business, consisting of a 71-room hotel with meeting facilities, a 5,000-square-feet restaurant with banquet facilities, tennis courts, a swimming pool, a driving range, and a golf course. While Petitioner's nephew was employed by Respondent as a clerk in its pro shop, he introduced Petitioner to Peter Sands, the director of golf, and Paul Earnhart, the golf manager. The four of them played golf together on several occasions, and Petitioner was considered to be a pleasant, cheerful person like his nephew. When Petitioner's nephew was about to leave Respondent's employ, he recommended to Sands that Sands hire Petitioner as his nephew's replacement. Sands and Earnhart were amenable to the idea. In July 2009 Petitioner completed an application for employment form and was subsequently hired to work part-time in the pro shop. He also gave golf lessons and continued to play golf on Respondent's course. On his application for employment, Petitioner left blank the section asking for information on Petitioner's prior employment. He did answer the question asking if he had ever been convicted or pled guilty to any crime, felony or misdemeanor, other than a minor traffic offense. By answering that question in the negative, he failed to disclose his two prior convictions for shoplifting, to which crimes he had pled guilty. Shoplifting is an offense which would have prevented Petitioner from being hired. Membership information, including the types of memberships Respondent offers together with cost information, was kept in a file folder in an open file folder holder behind the counter in the pro shop. It was part of Petitioner's job duties, as it was for Respondent's other employees, to provide that membership information to anyone inquiring. The importance of selling memberships for the economic viability of Respondent's business was stressed to Respondent's employees. On three separate occasions, Earnhart came into the pro shop and asked Petitioner for a copy of the membership information which was kept in the file. On the first occasion, when Petitioner was unable to retrieve it, Earnhart retrieved the information himself and explained to Petitioner that providing membership information was an important part of Petitioner's job duties. On the second occasion, which occurred approximately a week later, Earnhart again came into the pro shop and asked Petitioner for the membership information. When Petitioner was unable to comply with his request, Earnhart again showed Petitioner where the information was kept. He also told Petitioner that that was the second time he was unable to provide membership information to Earnhart and that Petitioner should not let that happen again. Approximately a week later, on September 27, 2009, Earnhart again came into the pro shop and requested a copy of the corporate membership information from Petitioner. When Petitioner was unable to provide it, Earnhart went to the computer in the pro shop and printed a copy from Respondent's website. While Earnhart was at the computer, Petitioner came to him, bent down next to Earnhart's face, probably less than a foot away, and said, essentially, that he was too well-educated to be reprimanded. Earnhart was shocked and angered by Petitioner's belligerent and confrontational manner. Earnhart retorted rudely and left the pro shop. He encountered Peter Sands, who was on his way into the pro shop, and told Sands what had happened, told him that was Petitioner's third and last time, and instructed Sands to find a replacement for Petitioner, train the replacement, and then terminate Petitioner's employment. On October 14, 2009, Sands had a conversation with Petitioner advising Petitioner that Petitioner's employment was going to be terminated. On October 21, 2009, Respondent terminated Petitioner's employment. At that time, Petitioner was still within his probationary period, which, under Respondent's policies, meant he could be terminated without cause. The day after he was fired, Petitioner sent a letter to Respondent advising that he was disabled and requesting accommodations under the Americans with Disabilities Act. The letter did not specify what disability Petitioner was claiming. Until receipt of that letter, Petitioner had never advised Respondent that he was disabled and he had not been perceived to be disabled by any of Respondent's employees who testified in this proceeding. During the term of his employment by Respondent, Petitioner made no request for accommodations due to any disability. While he did request a footstool to put his feet on while he was sitting behind the counter in the pro shop, he did not advise that his request was related to a disability rather than simple comfort. Likewise, when Petitioner requested to not work the normal Sunday 12-hour shift, he did not mention it was related to a disability. He was given a shorter Sunday shift as were other employees who requested one. Although Petitioner used a handicapped flag on occasion on his golf cart when he was playing golf, so do other people who are not handicapped but simply want to enjoy the privilege of driving closer to a green. In 1996 Petitioner was involved in an accident while working as a paramedic. He suffered a broken arm and tendon damage "throughout his body." After he was rehabilitated, he returned to work for another three years before he lost his job. Petitioner exhibited reluctance to disclose the nature of his alleged disability during the final hearing in this cause. He eventually disclosed at the final hearing that he was 100 percent disabled for "physical limitations," post-traumatic stress disorder, and chronic depression, but identified his disability in his deposition as post-traumatic stress disorder and insomnia. No medical evidence was offered to support Petitioner's allegations that he is disabled. He relied, instead, on hearsay documents, such as his motor-vehicle- handicapped-parking placard, his Medicare card, and his social security card. No competent evidence was offered as to whether Petitioner still has the disability he had when those documents were obtained or for which alleged disability each of those documents was issued. Rather, Petitioner admitted during the final hearing that his insomnia is controlled by medication, that it has been over five years since he received any treatment for post- traumatic stress disorder, and that he doesn't remember who diagnosed him with that condition. He testified in deposition and at final hearing that his post-traumatic stress disorder and his insomnia do not affect his ability or prevent him from being employed. More importantly, Petitioner testified at the final hearing that his alleged conditions did not affect his ability to retrieve membership information from the file folder and, further, that he does not believe that he was terminated by Respondent based on his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of committing an unfair employment practice and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 9th day of September, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 9th day of September, 2010. COPIES FURNISHED: John J. Joubert 7 Farrier Lane Crawfordville, Florida 32327 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William Grubbs, Esquire Quintairos Prieto Wood & Boyer, P.A. 215 South Monroe Street, Suite 510 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, 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 2nd day of March, 2010.
The Issue The issue for determination is whether Respondent, the Orange County Convention Center, discriminated against Petitioner, Norman H. Siales, on the basis of a handicap within the meaning of Section 760.10, Florida Statutes (2004).
Findings Of Fact Petitioner was first employed by Respondent in October 2000 as a set-up worker on an on-call basis. In June 2001, Respondent hired Petitioner in a regular full-time position as a set-up worker. Throughout his employment with Respondent, Petitioner's supervisors considered him a good employee who always performed his job properly and did assigned tasks to the best of his ability. Petitioner was incarcerated on or about July 8, 2004. Shortly after his incarceration, Petitioner called Steve Miller, one of the assistant supervisors in the Event Set-Up Department, and informed him that he was in the county jail. Petitioner was then told that he should keep Respondent updated on his situation. On or about July 9, 2004, Mr. Miller advised Mr. Schildgen, his supervisor, that Petitioner had called and reported that he was incarcerated. After first learning that Petitioner was incarcerated, Mr. Schildgen never heard from Petitioner. Moreover, Mr. Schildgen asked the two shift supervisors if they had heard from Petitioner, and they indicated they had not. Mr. Schildgen considered Petitioner a good employee and wanted him to return to work. However, in late July or early August 2004, after not hearing from Petitioner for about three weeks, Mr. Schildgen, in consultation with the manager of the Event Set-Up Department, determined that Petitioner's continued absence from the workplace, without notice, was a violation of the Orange County policy. According to the policy, employees could be terminated from employment if they were absent from the workplace for three consecutive days without notice to the employer. At or near the time Petitioner was employed by Respondent, he received a copy of the Orange County Government Employee Handbook (on June 11, 2001). He also received training on the Orange County Policy Manual. Petitioner signed an Employee Acknowledgement (March 30, 2004) form stating that he had received the training. The Employee Acknowledgement form, signed by Petitioner, further stated "I understand that I am responsible for complying with all Policies, Operational Regulations, Departmental Operating Procedures, and Departmental Guidelines, and that the failure to do so may be grounds for corrective action, up to and including termination." As a result of the training described in paragraph 6, Petitioner was aware of the Orange County policy that authorized employees to be terminated if they were absent from work three consecutive days and did not notify Respondent. Based on Petitioner's extended absence from the workplace and his failure to communicate with his supervisors regarding the absences, Respondent terminated Petitioner's employment. By letter dated August 26, 2004, Respondent terminated Petitioner's employment with the Event Set-Up Department. The reason for Petitioner's termination was that he had not communicated with Respondent since July 8, 2004. The letter also stated, "while we understand there were some extenuating circumstances involving the Orange County Sheriff's Office, we can no longer wait to address this violation of . . . policy." According to the termination letter, the applicable policy provides the following: "Failure to work for three (3) or more consecutive working days without proper authorization shall be considered job abandonment and result in immediate termination, unless the employee presents written proof that he/she was unable to make appropriate notifications through no fault of his/her own." When he was first incarcerated, Petitioner thought he would be held for 24 to 48 hours. However, he was not released until December 3, 2004. After Petitioner was released from jail, he went to his employer and asked if he could return to work, but was told that he could not return due to his excessive and consecutive absences without notifying his employer. Petitioner had a psychological evaluation when he was incarcerated, and a psychological report dated October 11, 2004, was generated as a result of that evaluation. Petitioner did not offer the evaluation into evidence, but testified that the evaluation indicated he had a mental illness. However, this report and the findings and conclusions therein have no bearing on this case as the report was prepared after Respondent terminated Petitioner's employment. Respondent was unaware of the psychological evaluation or report until the final hearing. During his employment with Respondent, Petitioner never advised his supervisor that he had a disability. Petitioner testified that in 2002 or 2003, he asked his three supervisors to help him "with the grievances." At hearing, Petitioner explained that when he used the term "grievances" he meant the mental, psyche, and physiological abuses he was suffering. In early 2002, while employed with Respondent, Petitioner sent a letter to Mr. Schildgen. According to Petitioner, the letter was about "psychological and physiological experimentations of science and technology." Mr. Schildgen found the letter described in paragraph 17 to be somewhat "strange," but nothing in the letter stated that Petitioner had a handicap or disability. After receiving the letter, Mr. Schildgen and two other supervisors met with Petitioner and asked him about the letter. During the meeting with his supervisors, Petitioner broke out in a cold sweat and rather than talking about the letter, started talking about subjects such as "Sigmund Freud and other stuff [Mr. Schildger and the other two supervisors] and we didn't quite understand where it was going." At no time during the meeting did Petitioner state or indicate that he had a disability. Moreover, there was nothing in Petitioner's personnel file that indicated he had a disability. At no time during his employment with Respondent did Petitioner advise anyone there that he had a handicap or disability. Also, Respondent never knew or considered Petitioner to be handicapped or disabled. The sole basis for Petitioner's termination was his violation of Orange County's "absentee policy."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Norman H. Siales', Petition for Relief. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman H. Siales Post Office Box 1772 Orlando, Florida 32802 P. Andrea DeLoach, Esquire Orange County Attorney's Office 435 North Orange Avenue, Suite 300 Orlando, Florida 32801
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2018.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Did Respondent discriminate against Petitioner because of his handicap and in retaliation for filing an earlier discrimination complaint with the Florida Commission on Human Relations, as alleged in Petitioner's Petition For Relief, in violation of Sections 760.01 - 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner checked the boxes for both Handicap and Retaliation in the section titled "Cause of Discrimination Based On" of the Charge of Discrimination filed by Petitioner on May 14, 1994. In the section titled "Date Most Recent or Continuing Discrimination Took Place" of the Charge of Discrimination Petitioner indicated December 22, 1992. In the section titled "The Particulars Are" of the Charge of Discrimination Petitioner indicated: PERSONAL HARM: On a continuing basis I have not been referred for work by my union, with the last occurrence on December 22, 1992. RESPONDENT'S REASON FOR ADVERSE ACTION: Mr. Mike Brewer, Union Business Agent, said that I was not wanted in the department in which I had previously worked. DISCRIMINATION STATEMENT: I believe I have been discriminated against because of retaliation for filing (FCHR No. 90-8052) for the following reasons: The last time I contacted Mr. Brewer he hung up on me. continuing Mr. Brewer has referred other union members for work on a basis. A NOTICE OF DETERMINATION: NO CAUSE was issued by the Commission on March 11, 1996. In Section 3 of the Petition For Relief filed with the Commission on April 15, 1996, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1993, as Amended, as follows: Conspiring with company to isolate the HANDICAPPED Petitioner in a classification essentially made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990 signing of the A.D.A. (singling him out for "layoff") F.S. 760.10(4b). Filing a grievance to deter the Petitioner from filing any HANDICAP Discrimination complaints, and refusing to process it. Referring others for employment on a continuing basis, (F.S. 760.104(b). Refusing representation. (Foreman/union steward?) At all times material to this proceeding, Petitioner Dennis M. Presson was a member of the bargaining unit of the Craft Maintenance Council, Carpenters Local Union No. 1820. Respondent Craft Maintenance Council, Carpenters Local Union No. 1820 Statutes. Commission and the courts. as a Property Craftworker Assistant, and assigned Petitioner to the Furnishings 10. During August, 1990, the work in Furnishings declined and, in lieu of craftworker assistants, including Petitioner, were temporarily assigned on through the first week of October 1990. October 11, 1990, was laid off due to lack of work in Furnishings. Petitioner 12. On November 2, 1990, the remaining six property craftworker assistants higher in seniority than Petitioner. transferred back to Furnishings so that he could be laid off is without merit. department until their function could no longer be justified in lieu of laying The lay-offs on October 11 and November 2, 1990, were caused by lack get back at Petitioner because of his handicap or in retaliation for filing an On October 11, 1990, when Petitioner was laid off, Disney offered as custodians. Although other property craftworker assistants accepted work as On October 12, 1990, Michael Brewer, Shop Steward filed an Employee of seniority - another worker with lower seniority had been retained. Respondent settled with Disney for $2,500 rather than proceed to final and Petitioner received payment. grievance or delayed or refused to process the grievance so as to deter During the grievance process Disney again offered Petitioner a job as From the time Petitioner was laid off on October 11, 1990, until December, 1992, Respondent referred Petitioner to six or seven jobs. These jobs covered every field where the work required unskilled or slightly skilled employees. Petitioner declined each and every offer, stating that he was an artist and wanted a job as an artist. Prior to Petitioner filing this complaint with the Commission, Respondent's last contact with Petitioner was around December 1992, when Petitioner informed Respondent that he had a job as an artist with Dollywood in Tennessee and was moving. On August 27, 1992, Petitioner filed a charge against Respondent with the National Labor Relations Board alleging that Respondent "has restrained or coerced and is restraining and coercing Dennis M. Presson, a crafts worker assistant, in the exercise of rights guaranteed in Section 7 of the Act by refusing to advise him of the status of his grievance on his layoff, for arbitrary, invidious and discriminatory reasons and therefore has breached its of fair representation". The National Labor Relations Board dismissed the charge for lack of merit. Respondent has referred Petitioner to jobs where Petitioner's skill matched the classification (unskilled or slightly skilled) of the job being offered. There was no evidence that Respondent had refused or failed to refer Petitioner to jobs that matched his skill because of Petitioner's handicap or in retaliation for filing an earlier discrimination complaint against Disney with the Commission. Petitioner presented no evidence of any job that matched his skill that was available through Respondent which Respondent failed or refused to refer Petitioner for any reason. Based on Petitioner's allegation, Respondent's last refusal to refer Petitioner to an available job occurred in December 1992. There was no evidence that Respondent: (a) conspired with Disney to isolate Petitioner in a classification made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990, signing of the A.D.A. (Americans with Disabilities Act); (b) conspired with Disney to single Petitioner our for lay off; or (c) refuse to represent Petitioner while a member of the union. Petitioner has neither been employed nor has he attempted to obtain any gainful employment since he was laid off by Disney on October 11, 1990. During this period Petitioner has worked on this case and looked after his mother. Petitioner survives on food stamps and other governmental subsidies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Petition for Relief filed by Dennis M. Presson against Craft Maintenance Council, Carpenters Local Union No. 1820 be dismissed. RECOMMENDED this 27th day of November, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: Sharon Moultry, Clerk Building F, Suite 240 325 John Knox Road Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 Tallahassee, Florida 32303-4149 2816 4th Street Orlando, Florida 32820 Thomas Egan, P.A. 56 East Pine Street
The Issue The issue in this case is whether, on the basis of Petitioner's age, Respondent (a staffing agency) unlawfully discriminated against Petitioner by having him terminated from his position with Respondent's client, in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent inSync Staffing, Inc. ("inSync"), is a company that recruits for, and supplies employees to, its clients, including, as relevant here, NBTY, Inc. ("NBTY"). inSync is an "employment agency" as that term is used in the Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13, infra. inSync does not meet face-to-face with most of the candidates it places with clients. On or around August 19, 2015, a recruiter at inSync forwarded the résumé of Petitioner Adalberto Lopez ("Lopez"), then 75 years old, to NBTY in hopes that NBTY might hire Lopez to fill the position of "QA Floor Inspector – Shift 1," a job that paid $13.50 per hour. About a week later, NBTY interviewed Lopez, and, on September 2, 2015, inSync informed Lopez that NBTY was offering him the job. Lopez accepted the offer. NBTY, not inSync, made the decision to hire Lopez. At all times, inSync acted essentially as a go-between, introducing Lopez to NBTY and helping him apply for the job, informing Lopez of NBTY's training and drug test requirements for new employees, and providing him with documents that NBTY wanted completed and returned in the ordinary course of new-hire onboarding. One of the documents that Lopez was required to sign and submit was the Employment Eligibility Verification (Form I-9), which is used by the U.S. Department of Homeland Security, administrator of the federal E-Verify program, to determine whether an employee is authorized to work in the United States. The E-Verify program provided NBTY with a result of Tentative Nonconfirmation ("TNC"), meaning that there was, at a minimum, some discrepancy between the information provided in Lopez's Form I-9 and that available in other public records. A TNC does not necessarily disqualify an employee from continuing to work, but it does need to be resolved to avoid the possibility of termination. In this instance, there is no persuasive evidence that the TNC led NBTY to take any adverse action against Lopez. There is, moreover, no evidence that inSync took any adverse action against Lopez as a result of the TNC. Lopez's first day of work at NBTY was September 14, 2015. The next day, NBTY terminated Lopez's employment. Nevertheless, Lopez showed up for work on September 16 and was told, again, that he no longer had a job. There is no persuasive evidence that inSync played any role in NBTY's decision to fire Lopez. inSync did, however, communicate this decision to Lopez, telling him that he had "been terminated due to not catching on fast enough." This was the reason for the termination given to inSync by NBTY. There is no persuasive evidence that this was not, in fact, NBTY's reason for firing Lopez. There is no persuasive evidence that NBTY eliminated Lopez's job, but there is, likewise, no evidence that NBTY filled the vacant position after Lopez's termination, nor (it obviously follows) any proof regarding the age of Lopez's successor (assuming NBTY hired someone to replace Lopez). There is no evidence concerning the candidates, if any, that inSync referred to NBTY after Lopez had been fired. Ultimate Factual Determinations There is no persuasive evidence that any of inSync's decisions concerning, or actions affecting, Lopez, directly or indirectly, were motivated in any way by age-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age discrimination could be made. Ultimately, therefore, it is determined that inSync did not discriminate unlawfully against Lopez on the basis of his age.
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 inSync not liable for age discrimination. DONE AND ENTERED this 26th day of October, 2017, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2017.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of her age.
Findings Of Fact Respondent, the Pasco County Board of County Commissioners, is a governmental entity, and the Pasco County Library System is one of its departments. Petitioner, a female, was born on July 2, 1955. Respondent first employed Petitioner on or about September 8, 1997, as a Library Assistant II, a paraprofessional position. When Respondent hired Petitioner to this position, she was 42. On April 9, 2001, Petitioner was promoted to a Librarian I trainee position, at the age of 45. On February 4, 2002, Petitioner was promoted to a Librarian I position, at the age of 46, after she earned a Master's Degree in Library Science. The position of Librarian I is an at-will position, meaning that the person serving in such position can be terminated for no cause. Petitioner continued to work in the position of Librarian I until Respondent terminated her on or about March 24, 2005. Prior to 2002-2003, Petitioner's annual evaluations were favorable. Even after Petitioner was promoted to the Librarian I position, her annual evaluations rated her job performance in several categories, as well as her overall job performance, as "meets standards." The rating of "meets standards" indicates that the employee's performance "generally meets the supervisor's expectations on most performance criteria." Notwithstanding Petitioner's overall ratings of "meets standards," in the annual evaluations for 2002-2003 and 2003- 2004, her performance in some categories was rated as "needs improvement." Petitioner's annual evaluation for the period from April 2, 2002, to April 9, 2003 (the 2002-2003 evaluation), rated Petitioner's performance as "needs improvement" in several sub-categories under the following three categories: (1) Application of Professional Skills; (2) Performance of Routine and Special Assignments; and (3) Working Relationship, Communication, and Coordination with Other Personnel. Under each broad category, there were four sub-categories as well as a sub-category for the total rating in that particular category. On Petitioner's 2002-2003 evaluation, under the category, "Application of Professional Skills," Petitioner was rated as "needs improvement" in one sub-category. That sub- category was, "no unnecessary delays are encountered in performing assignments or resolving problems." On the 2002-2003 evaluation, under the category, "Performance of Routine and Special Assignments," Petitioner's performance in all sub-categories was rated as "needs improvement." These sub-categories were as follows: (1) conformance with schedules, standards, and plans does not require close supervision; (2) deviations in instructions, work schedules, and standards are approved by supervisor or corrected; (3) new and additional assignments are readily accepted and performed; and (4) work is of sufficient quality and quantity to meet supervisor's expectations. With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the evaluation indicated notes that Petitioner should be at her assigned work location at scheduled times, and should obtain approval in advance from her supervisor prior to changing her work location and/or assigned work times. The written comments on the evaluation also stated that Petitioner had difficulty accepting a new supervisor, but indicated that Petitioner was responsible for readily accepting and implementing instructions from her supervisor. The 2002-2003 evaluation rated Petitioner's performance in all the sub-categories under the category, "Working Relationship, Communication, and Coordination with Other Personnel," as needs improvement. The sub-categories were as follows: (1) conflicts or problems in working relationships are usually resolved without intercession of higher authority; (2) needs, problems, and procedures are communicated to affected parties; (3) desired results are accomplished through subordinate and other personnel; and (4) few and only minor problems occur because of inadequate communication and coordination of activities. With reference to the category, "Working Relationship, Communication, and Coordination with Other Personnel," on the 2002-2003 evaluation, Petitioner's supervisor wrote, Petitioner has the propensity for starting projects at the last minute which negatively affects other team members. Furthermore, in the written comments on that evaluation, the supervisor directed Petitioner to communicate regularly with other team members when collaborating on projects and to communicate needs and problems to her supervisor before deadlines. On the 2002-2003 evaluation, under the category, "Other Factors Important to Supervisor," Petitioner's supervisor noted that Petitioner "is encouraged to learn and adapt to change." Petitioner's second annual evaluation (the 2003-2004 evaluation), while employed as a Librarian I, covered the period of April 9, 2003, to April 9, 2004. Petitioner's 2003-2004 evaluation, like her 2002-2003 evaluation, rated her overall performance as "meets standards." However, on the 2003-2004 evaluation, Petitioner's supervisor rated her performance in three sub-categories as "needs improvement." In the 2003-2004 evaluation, the first category in which Petitioner was rated as "needs improvement" was "Application of Professional Skills." The specific sub-category in which Petitioner was rated as "needs improvement" was "no unnecessary delays are encountered in performing assignments or resolving problems." With regard to the category, "Application of Professional Skills," on the 2003-2004 evaluation, Petitioner's supervisor wrote that Petitioner has excellent reference skills, is resourceful and determined to provide good customer service, has highly developed problem solving skills, and has made many helpful and logical suggestions that have benefited the library. However, the supervisor's written comments also noted that, "the strength of some of [Petitioner's] ideas may occasionally make it difficult for [her] to adjust quickly when a decision is made to proceed in a fashion that differs from the way she believes is correct." On the 2003-2004 evaluation, in one of the four sub- categories under the category, "Performance of Routine and Special Assignments," Petitioner's performance was rated as "needs improvement." That sub-category was "new and additional assignments are readily accepted and performed." With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the 2003-2004 evaluation indicate that Petitioner served as reference support for many branches throughout the county, that her efforts are appreciated by staff and supervisors at those branches, and that her willingness to travel to the various locations on an ever-changing basis is commendable. The supervisor further noted that in addition to her other assignments, Petitioner developed a series of on-line tutorials. However, in addition to the foregoing commendations about Petitioner's work, the supervisor wrote that "there has been occasional reluctance to initiate some assignments in a timely fashion on [Petitioner's] part." The third area in which Petitioner was rated as "needs to improve" was a sub-category under the category, "Working Relationship, Communication, and Coordination With Other Personnel." The specific sub-category under that category in which Petitioner's performance was rated "needs to improve" was "conflicts or problems in working relationships are usually resolved without the intercession of higher authority." With regard to this category, the evaluation notes that Petitioner is a respected member of the Pasco County Library System. However, the evaluation states that Petitioner "is reminded that she should strive to complete her assigned duties in a timely fashion so as not to affect her co-workers in a negative way." Petitioner's 2003-2004 evaluation also made detailed comments in an area designated "Other Areas Important to Supervisor." While acknowledging that Petitioner is an intelligent and thoughtful employee, and that her suggestions are consistently logical and well thought out, the supervisor's written comments on the evaluation stated, "[Petitioner] has been told . . . that she needs to develop her ability to accept and implement decisions that she may not agree with. She has also been told to focus more of her efforts on being a team player rather than defending her own position (no matter how defensible that position may appear)." Petitioner received and signed the 2002-2003 and the 2003-2004 annual evaluations, and was verbally counseled by two of her supervisors. There is no dispute that Petitioner was a competent librarian and well trained for the position. Moreover, Petitioner did a good job on her work-related assignments if they were assignments that she liked, but she tended to ignore assignments that she did not want to do. Such conduct created problems on the job by requiring other employees to do some work-related tasks assigned to Petitioner. Following Petitioner's 2002-2003 and 2003-2004 evaluations, there was an work-related assignment which ultimately culminated in Respondent terminating Petitioner's employment. The assignment was an important, extensive, and comprehensive project that required team work. That assignment, referred to as "weeding," was given to all librarians in or about October 2003. The project required the librarians to "weed" assigned sections in the library by removing outdated and damaged books and materials. New books and materials were to be ordered to replace those outdated and damaged books and materials. Petitioner believed the "weeding" project was a 15- month project with a projected completion date of December 2004. In April 2004, Petitioner's supervisor asked her when she would complete her portion of the weeding project. Petitioner did not respond to her supervisor's question. Instead, Petitioner asked her supervisor if the deadline for completing the project had changed. In August 2004, Petitioner's supervisor again asked her when she would have her assigned weeding project complete. As she had in April 2004, Petitioner responded to this inquiry by asking her supervisor if the "deadline" had changed. Petitioner never gave her supervisor a specific or approximate time when she would complete the project, but only said she would complete the project "soon." This response was non- responsive and gave the supervisor no information regarding how much of the Petitioner's weeding assignment was complete, how much of the assignment remained to be done, or when she would complete the assignment. After Petitioner failed to respond to her supervisor's inquiry about when she would complete the weeding assignment, the supervisor pulled Petitioner off the weeding assignment. He then assigned another librarian to complete Petitioner's weeding assignment that she had not yet completed. That librarian completed Petitioner's assigned weeding in about a day and a half. Based on Petitioner's failing to complete her assignment described in paragraph 25, Petitioner's supervisor conferred with appropriate human resources personnel about terminating Petitioner's employment. Upon completion of the review process, Petitioner's employment was terminated. In a letter dated March 24, 2005, Respondent notified Petitioner that, effective immediately, her services at the Pasco County Library Services were no longer required. The letter did not give a reason for Respondent's termination. Petitioner's employment as a Librarian I was an at- will position. Accordingly, Respondent was under no duty to give Petitioner a reason for her termination and could, in fact, terminate her for no cause. Petitioner alleged that she was terminated in retaliation for following a supervisor's directive that Petitioner terminate the services of a library volunteer. Petitioner also alleged that Respondent terminated her employment, based on her age, in order to bring in younger librarians and to move out the older librarians. Petitioner's allegation that she was terminated based on her age is not supported by the evidence. First, the allegation that her employment was terminated because she followed a supervisor's directive to terminate the services of a library volunteer does not in any way establish that Petitioner was terminated because of her age. Second, although Petitioner alleges that there was an effort to bring in young librarians and to move out the older librarians, the evidence established that there was no interest in or effort to hire only young librarians and fire the older librarians. Rather, there was an effort to promote persons currently in Librarian I positions with the Pasco County Library System, regardless of their age, and to bring in new librarians into the entry level positions. The average age of professional and management staff in the Pasco County Library System is 46, even though the Librarian I is an entry level professional position and may attract younger candidates. The reason Petitioner was terminated as a librarian, with the Pasco County Library System, was because of her job performance and not because of her age.
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 finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 31st day of January, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Barbara DeSimone Pasco County Board of County Commissioners d/b/a Pasco County Library System 7530 Little Road New Port Richey, Florida 34654 Cyd Johnston Stewart 3801 Allen Road West Virginia, Florida 33541 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
